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Back To Work: NLRB Appears Poised To Implement Several New Pro-Union Rules

Five years into Barack Obama’s presidency, the National Labor Relations Board (NLRB) is better positioned than ever to advance its pro-union agenda.  The obstacles that had impeded the “Obama Board” over the last five years are now largely gone.  For the first time since President Obama took office, the NLRB is fully staffed with properly confirmed members.  And now that the government shutdown has concluded, the NLRB has reopened.  This means employers can expect the NLRB to begin changing the law in a way that affords labor unions and non-union employees even greater protection.  Here are some of the changes that may be pending, and advice on what employers can do to prepare.

1.    Non-Union Employees May Receive The Right To Representation During Disciplinary Investigations.

One of the Obama Board’s key goals has been to grant greater benefits to non-union employees.  So far, it has done so primarily by expanding restrictions on employment policies.  Now that the NLRB has largely clarified its position on employment policies, many expect it to find other ways to grant non-union employees new rights.  One of the most likely ways it could do this is by reinstating “Weingarten” rights for non-union employees.

All union-represented employees currently possess “Weingarten rights,” which means they can have union representatives sit in whenever they meet with their employers for investigatory interviews that could result in discipline.  In other words, if an employer asks an employee to meet and answer questions about whether she engaged in misconduct, the employee may have a union representative sit in on the meeting and serve in a role similar to a criminal defense attorney.  This union representative can, for example, meet with the employee in private before the meeting to discuss their “game plan” and object to certain types of questions.

The NLRB has repeatedly flip-flopped on whether non-union employees also possess these rights.  For 25 years, non-union employees did not also possess them.  Then, in 2000, the Clinton-appointed NLRB extended these rights to non-union employees.  Four years later, the “Bush Board” reversed back to the status quo and held that only union-represented employees possess these rights.  The fact that the NLRB has repeatedly changed its position is a major signal that it could revisit this issue.

For these reasons, now is an ideal time for employers to reassess their disciplinary investigation procedures.  The NLRB already made disciplinary investigations more difficult for employers last year, when it prohibited them from instructing employees not to discuss pending investigations (absent unusual circumstances).  As the NLRB continues to create obstacles for employers seeking to prevent employee misconduct, it becomes even more important for employers to make their investigation procedures as efficient and effective as possible in all other respects.  To counterbalance the problems the NLRB is creating, employers should fine-tune their investigation procedures to make sure they are initiating investigations as soon as possible, documenting investigations thoroughly, and obtaining as much evidence as possible before meeting with accused employees.  The NLRB’s new rules also make it more important for employers to have strong communication between their officials, particularly between front-line supervisors and human resources.  Taking the time to revise your investigatory procedures is always good practice, and it can help offset any problems the NLRB creates if it changes the law even further. 

2.      Non-Union Employers Should Prepare For “Quickie Elections.

Two years ago, the NLRB attempted to enact new rules that would have helped unions organize non-union workforces.  These “quickie election” rules would have helped unions obtain elections as quickly as three to four weeks after they first made their presence known, and thus “ambush” employers with union elections before they have a chance to respond.  Fortunately for employers, several federal courts rejected these rules on the grounds that not enough members of the then-understaffed NLRB voted on them.  Now that the NLRB is fully staffed, it will not have this same problem, and almost certainly will reissue the rules.

In order to prepare themselves, non-union employers should begin making plans for how they would respond to union organizing campaigns.  Federal law strictly controls how employers can and cannot respond to common union organizing tactics.  Because it takes time to learn these rules and communicate them to supervisors, a union under the new regime could obtain an election before an employer can even prepare its response.  Accordingly, non-union employers should take the time now to learn these new rules, prepare anti-union campaign materials, train their supervisors, and otherwise determine how to respond to likely union tactics.  Employers in the retail/service, automotive/automotive supply, and healthcare industries are currently major targets for these types of union organizing campaigns.  Although these “quickie election” rules will make it easier for unions to organize, they will not create nearly as many problems for employers who prepare their response campaigns in advance.   

3.    Unionized Employers With Temporary or Contingent Workers Should Keep Their Workforces as Separate as Possible.

In recent years, employers have been assigning an even larger portion of their workload to temporary or contingent workers, as opposed to traditional employees.  Utilizing temporary workers benefits employers in several respects, including by reducing their employment-related compliance costs.  This practice carries an even greater benefit for unionized employers, as non-union temporary workers generally receive lesser wages and benefits than their union-represented counterparts. The NLRB, like other federal agencies, has taken notice of this practice.  As the Obama Board continues to work to help unions organize new employee groups, many expect it to remove a major hurdle for unions seeking to represent temporary workers.

As with other areas, the NLRB has repeatedly flip-flopped on what unions must do to represent temporary workers.  In 2000, the Clinton Board held that traditional and temporary workers can fall within the same “bargaining unit,” and thus be represented by the same union even without a group-wide election, if their employment conditions are sufficiently similar.  Four years later, the Bush Board reversed, and held that the two groups will not fall within the same unit unless both of their employers consent (which rarely will occur).  Because the NLRB has repeatedly changed its position, however, this rule is another prime target for reversal.

If the NLRB reverses the law, this will make it very simple, in many situations, for unions to organize temporary workers that work alongside the unions’ constituents.  A union that represents an employer’s traditional employees would simply need to file a petition with the NLRB and argue that the temporary and traditional employees’ working conditions are sufficiently similar.  If the union makes this showing, the NLRB would permit the union to represent the temporary workers without even conducting an election.

Because the NLRB could easily change this rule, unionized employers with temporary, non-union workforces should work to protect themselves.  These employers should, as much as possible, keep the two groups of workers separate.  They should assign them different types of work, schedule them for different types of shifts, and require them to report to different supervisors (with the temporary staffing agency supervising the temporary workers).  These steps will significantly reduce the chances the NLRB could lump these two groups into a single bargaining unit, and thus permit a union to represent both without an election.  Employers who fail to do so could risk losing the primary benefit of temporary labor.

* * * * *

As the NLRB gets back to work after the government shutdown, employers should pay close attention to its decisions.  Although the Obama Board appears poised to change the law in several pro-union respects, employers can greatly reduce the problems the NLRB creates by preparing themselves in advance and responding quickly to new decisions.   



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