Christmas Comes Early for Unions as New NLRB Rules Expose Employers to Organizing Campaigns and Elections

The NLRB decided to play the role of the Grinch this Wednesday before Christmas and took action which will have a detrimental impact on all employers.  As promised by the partisan Board, the NLRB’s democratic members formally adopted rules which drastically modify representation case handling procedures.  This is the latest attempt to push through its pro-union agenda prior to the departure of Member Becker at month’s end.  Following his exit, the Board will become irrelevant until new members are confirmed by the Senate, as the Board must have three (3) members for a quorum.  The new rules go into effect on April 30, 2012.  It is important to note that the U.S. Chamber of Commerce has already filed a lawsuit challenging their implementation.

What Has Changed

As a result of the Board’s action, Unions now have a greater chance of organizing workforces through a speedier election process and an employer’s reduced ability to challenge eligible voters.  The Board adopted several provisions which limit an employer’s ability to challenge a unit’s appropriateness, penalize an employer if it does so, and essentially removes the Board from any involvement in a representation case until after an election takes place.  This is a significant change in the rules and greatly limits an employer’s free speech and due process rights by restricting its ability to communicate with employees after learning of union activity.

What It Means for Employers

Combined with the Board’s earlier micro union standard in Specialty Healthcare, an employer’s ability to challenge a bargaining unit prior to an election is practically eliminated.  With the inclusion of a reduced election period (potentially less than 25 days if units are challenged) the employer has a greatly reduced ability to educate employees on the costs and impact associated with joining a union once it is notified of an organizing effort.  Consequently, employers are now susceptible to ambush elections and, unless they take action, face an increased threat of unionization.

What should employers do in response to this rule?

Communication and training are key to avoiding the pitfalls associated with union organizing drives.  Under the new rules, if you wait until a recognition petition arrives, it is already too late.  Labor awareness training is a must for all employers and in an age with a pro-union Board, it is recommended that you speak with employees early and often.  Many times an organizing drive can be thwarted before it begins if you give employees an opportunity to learn the truth about organized labor.

Should you need assistance in preparing for these new rules or educating your workforce, please contact Mark Bonfanti with Gunster’s Labor & Employment Law Practice Group at 850-521-1980.

Tags: Mark L. Bonfanti