The NLRB is Locked and Loaded – Ready to Go

Contributed by Karuna Brunk

The National Labor Relations Board now has five Senate-confirmed members and is “ready to go,” according to Chairman Mark Gaston Pearce.  This is the first time since 2003 that the NLRB has five sitting members.  The pro-union Board has been joined by AFL-CIO attorney Nancy Schiffer and union lawyer Kent Hirozawa.

The Board is particularly focused on facilitating and expediting union organizing.  First, and most notably, the Board is set to implement the ambush or “quickie” election rule, which would reduce the amount of time between when a union files a representation petition and when an election takes place from the average of 40 days to as few as 10 days.  This reduction in time would dramatically limit the issues employers could raise in the pre-election process.  We previously reported on our blog that the ambush rule was no longer in effect because the Board lacked the proper quorum of members when it enacted it.  Now that the Board has the requisite number of members, it can simply vote to re-enact the ambush rule or put in place some other rapid election process.

Second, the Board will probably revisit the notion of micro-unit organizing.  In an August 30, 2011 ruling, the NLRB ruled that a union could seek to organize a group of nursing assistants, despite requests by the employer to include other employees in the unit.  This decision created new standards for the bargaining unit; an employer would have to show that excluded employees should be included.  Needless to say, it is much easier for a union to organize smaller groups of people.

As we said before, the new Board is likely to be extremely active in its rule-making and is seeking to advance union organization and union backed causes.

Bottom line – Take Action Now!

In regards to both the above mentioned changes from the Board, the best course for employers is to be proactive.  Employers should think about how to handle and respond to union organizing now!  Put in place an action plan to diminish the risks with union organizing. This plan includes supervisor training on how to maintain a non-union workforce, and perhaps even certain persuader activity to educate employees on the facts behind “union card check” and other union tactics. To combat micro-unit organizing, examine your company structure and evaluate all classifications of employees.  Finally, even those employers currently with a union workforce will continue to feel the impact of overwhelmingly pro-labor decisions impacting their ability to effectively manage.  Feel free to reach out to qualified labor counsel for special guidance unique to your operations.