As ASE has reported, the pro-union National Labor Relations Board (NLRB) is dramatically changing labor law tilting against union-free employers. The ongoing changes to labor rules and practice by the NLRB will make it much easier for unions to organize and also much easier for employers to break the law.

ASE previously reported in EPTW, an NLRB decision called Cemex Construction Material allows the NLRB to declare a union victorious without an election if they determine the employer may have committed an unfair labor practice. Previously, the only way such a determination could be made is if it was found that the employer’s behavior was so egregious it would be impossible to hold a fair election. This standard arose from a U.S. Supreme Court case NRLB v. Gissel Packing Co. (1969). Based upon the new Cemex holding, it only takes a finding that an unfair labor practice occurred. A breach of the law could be as simple as a misstated employer rule or policy.

Further, under Cemex upon a union simply claiming majority support the employer must:

• • Immediately grant recognition without any NLRB election or
  • File its own NLRB petition seeking an election within two weeks of the union demand

If an employer is not prepared to quickly respond, the NRLB just grants the union the right to bargain – no election; no worker voice, unless the employer can fight the decision challenging the validity of the cards or accuracy of the union’s claims in a subsequently filed unfair labor practice case with the NRLB. Oh, and if the employer goes ahead and recognizes a non-majority union mistakenly, they breach the NLRA as well.

This is only part of what recent NLRB decisions and rules have changed in just the last month. How many employers and their HR professionals today understand how a union organizing drive works and how they should practice their rights without breaking the law?

Employers confronted with a demand for union recognition alleging majority status are advised to start with a request to the union to provide evidence of majority status before making any decision about whether to recognize the union.

If the union misrepresents what the authorization cards are to a worker, this can be used to invalidate the card. Further, if an employer can show the union did not follow proper procedures for collecting the signatures on the card, it may be shown they committed an unfair labor practice. Other objections can be made toward a claim of majority status as well. That said, unions have experience with this and will be prepared to defend their claim.

Employers and HR professionals would be well served to understand labor law to avoid unintentional unfair labor practices. When involved in a potential labor organizing situation remember the acronym TIPS. Do not Threaten, Interrogate, Promise, or Surveille. But knowing what a threat is or how to draft a simple policy such as what information (information that may be considered confidential to the employer) an employee can or cannot share with others now takes a deeper understanding of what the law allows.

Under the current NLRB, an improperly drafted policy statement that has been in an employer’s handbook perhaps for years because it has a business reason behind it, can now be used to establish an unfair labor practice charge that, as stated above, could result in a mandatory bargaining order by the NRLB. This is only one of many obscure but impactful labor law rules that employers need to know going forward.

NRLB election reports this year show that unions are currently winning elections against employers more than 75% of the time. The best union avoidance action an employer can put in place is to create a workplace where employees and the employer have a constructive direct relationship with each other.  

• Listen to your workers.
• Pay fairly, and most importantly,
• Train your supervisors and managers how to lead properly and to respect their workers. Teach them how not to be bad managers.

Employers and HR professionals are also advised to update their own knowledge of labor law and what their rights are. Otherwise, a union may just walk right in with this NLRB’s help and blessing.

ASE has resources to help.

ASE now has two labor law classes to educate your understanding of labor law and how it impacts employers today. Coming October 18, 2023, ASE offers its class, Union Avoidance: Recognizing and Handling Unionization Attempts designed to provide an understanding of how to respond to union organizing. ASE will also be running its National Labor Relations Act Overview class December 14, 2023. Both classes will be run again next year too.

To get your supervisors and managers where they should be as leaders ASE recommends our flagship supervisory classes Principles and Practices of Supervision I & II. These classes are running monthly at ASE and can also be brought directly to your workplace as a custom program. View upcoming courses here.

Additionally, ASE has a library of employment, labor, and union free information for its members’ education. Contact ASE’s HR Hotline for more information.

☏ (248) 223-8057   

✉ hrhotline@aseonline.org
 

Join the conversation.

Lastly, join us for a Peer-to-Peer Discussion, Does your organization have a clear path to success for first-time managers and future leaders? on September 26, 2023, 9:00 AM - 10:00 AM.

First time managers and newly appointed leaders receive very little support in the transition to their new roles. Resulting in blurred expectations and turnover. Join fellow ASE Members to discuss how to move high performing individual contributors to managers and leaders in your organization.  Participants will receive a demonstration of where to find tools and templates on the ASE Member Dashboard to assist them with this initiative. 

Register

Source: Law 360 Employment Authority. New NLRB Union Rules Require Proactive Employer Response. (9/5/2023)