Is There A Union In Your Company's Future?

       Big changes are afoot in Washington that could mean your business will be much more susceptible to becoming unionized.  Here is what's happening and what it means.

        Earlier this year, the NLRB announced a first of its kind NLRB rule requiring employers to post a government notice advising employees of their rights to form a union. That rule is scheduled to go into effect on January 31, 2012. That date could change as a result of two court cases which seek to block the rule from taking effect.

       Last June, the NLRB announced its intent to substantially overhaul its procedures governing how a union goes about organizing an employer's business. These procedures, which have remained largely unchanged since 1935, represent a delicate balance between the rights of unions, employees and management.

       Coming on the heels of Big Labor's failed attempt to pass so-called "card check" legislation (remember the "Employee Free Choice Act"?), many business commentators saw this move by the democrat-controlled NLRB as nothing more than a politically motivated attempt by the Obama administration to make good on its campaign pledge to help organized labor swell its ranks.

       Chief among the so-called "reforms" being discussed are the timing of union elections (i.e., how quickly a union election will take place once the union has asked for one at the NLRB) and the elimination of certain procedural safeguards which Big Labor feels are used by employers to delay the election process.

       Since unions control the timing of when they will seek an election, it stands to reason that they typically do so when their support is at its peak. Under the existing procedures, the NLRB will schedule an election an average of 38 days after the union asks for one.

       To Big Labor, this is too long. The proposed rule changes help the unions by making elections happen faster and with fewer outlets for employers to challenge the results or delay the process.

       In July, the NLRB took the extraordinary step of holding a two-day public meeting on the proposed rule changes. They also received more than 65,000 public comments. Many in the business community saw the hearings as mere window dressing, since it was obvious from the comments of the three (now two) Democratic NLRB appointees (all former union side labor lawyers) that they had enough votes to pass the package of pro-union rule changes.

       On November 30, the NLRB voted by a 2 -1 majority to pass a formal resolution authorizing the Board to adopt a Final Rule to shortcut the election process. However, because there was so much heat in Congress, they chose to adopt only some of the proposed rules. The resolution which the NLRB adopted last Wednesday will create a Final Rule implementing some, but not all, of the streamlined election procedures introduced this summer. The rest are still on the table, but will not be voted upon for the foreseeable future.

       Although most of the items in the resolution are technical, one thing is clear. In most cases, NLRB secret ballot elections will indeed happen faster than before, leaving employers with less time to counter union organizing campaigns and fewer legal options once the process has begun.

       The key changes in the Final Rule:

        *       Faster elections because there will be fewer (and shorter) pre-election hearings.

        *       Faster elections because the hearing officer will decide issues on the spot in most cases, without the benefit of written legal arguments from the parties.

        *       Faster elections because the NLRB will no longer hold up the voting to hear appeals about problems in the initial pre-election hearing. This will happen, if at all, only after the election.  Also, fewer issues will even be heard by the NLRB.  

       *     Faster elections because the current 25-day minimum period for an election is abolished.

        *      Faster final results after the election because the NLRB will hear fewer post-election challenges by employers about the way the election was conducted or the behavior of the union during the run up to the election.

        By law, the NLRB requires a three member quorum to adopt rule changes such as this. The NLRB will be reduced to just two members at the end of this month as the term of one of Mr. Obama's most controversial appointees expires. Most insiders believe that the Board will hurry up and create the Final Rule adopting these changes before the end of the month. Given the amount of controversy which these rule changes have engendered, Washington insiders also speculate that another NLRB appointment might be delayed for quite some time, crippling the NLRB's ability to implement additional new rules and decide cases.

        In the meantime, if a Final Rule incorporating these changes is implemented, it will be easier for unions to organize and win elections. That being the case, employers who are serious about preserving union free status will want to take concrete steps now to ensure that they are positioned to do so.

        Our labor relations team is available to assist you in devising a strategy that suits the needs of your organization. Please contact Ken Ballard, Richard Rosenberg, Matt Wakefield, John Golper, Katherine Hren or your contact at the firm to get a briefing on strategies to meet your business goals.

Sincerely,

Richard S. Rosenberg

Partner

BRG&S, LLP