What other changes has the president made that will affect organized labor?
The other one is the makeup of the National Labor Relations Board. The NLRB’s headquarters is in Washington, D.C. and there are five people who are members. The party in the White House gets to nominate three of the five and the party that is not in the White House gets to nominate the remaining two.
The president has nominated three people to the labor board, two of whom used to work as staff attorneys for unions, and one who does union side work with his firm in Buffalo, N.Y. So you’re going to have a very pro-union activist labor board rendering decisions that will be favorable to unions.
How could this affect labor issues?
The labor board could reverse certain decisions that exist today. What we are likely to see this labor board do is make it a lot easier for temporary employees that an employer may utilize from a temporary agency to vote in labor board elections. This labor board may also allow in a non-union setting for employees to have co-worker witnesses present during investigatory interviews that could lead to discipline. Most importantly, this labor board could — through either rule making or through case decisions — accomplish some of the things that EFCA was intended to accomplish.
Just like there is more than one way to skin a cat, there is more than one way to accomplish labor law reform. The labor board could shorten the time from the date the union files to have a vote to the date of the actual vote. Under the current law, the average is a 40-day period from the day the petition is filed to have the vote until the actual vote. The labor board could shorten that time frame to seven, 14 or 21 days, which would be a significant disadvantage to the employer community.
The labor board could grant union organizers certain access rights to employers’ premises or limit an employer’s free speech rights to communicate with its employees during this process. Those free speech rights were established by Congress in 1947. One controversial labor board member, Craig Becker, thinks employers should play little to no role in the entire union organizing process.
What do these changes mean for employers?
It means you have to be a lot more proactive than you have been. That is especially true if you are a federal contractor. Imagine one day you are informed by the government that you have to post a notice in the workplace advising your employees about their right to form unions. The employees may wonder if the employer in fact endorses or supports their right to form a union. Will supervisors be prepared to answer questions regarding the posting?
What can companies do to prepare?
They need to really take a look at their entire approach to remaining union free. They need to have a well-trained management team that will be able to help identify issues that may arise. Also, they need to do an issues vulnerability audit to find out what issues may make them vulnerable to union activity and correct those issues now, before the activity takes place. There is no doubt that we are going to see an uptick in union organizing activity. The time to plan is now, not when the union is knocking at your front door.
Mike Stief is a partner with Jackson Lewis LLP. Reach him at (412) 232-0138 or [email protected].
