(Rebecca Smith) – In 2011, the NLRB made some very union-friendly changes, and every employer should be aware of how they could affect their business. Five of the most aggressive changes are
- Micro bargaining units
- Notice of the right to unionize
- Handbook policies
- Card check recognition
- Increases in 10(j) Federal Court Injunctions
1. The micro bargaining unit should be a concern for businesses of all sizes. Under the new standard, so long as a union’s petitioned-for unit consists of a clearly identifiable group of employees, the Board will presume the unit is appropriate. If an employer argues that the unit should include additional employees, the employer must demonstrate that employees in a larger unit share an “overwhelming” community of interest with those in the petitioned-for unit.
The practical effect of this decision is that, in the not uncommon situation where a union is unable to garner widespread support, unions in all industries will be encouraged to organize the smallest units of employees possible.
Employers, meanwhile, will be forced either to accede to the appropriateness of a mini-unit or take on the difficult and costly task of proving that other employees belong in the unit. Suffice it to say, it is easier for a union to organize a small unit of employees and, once it gains a toehold, a domino effect may ensue, as one narrow unit after another is organized. As a result, employers may be forced into negotiations with multiple bargaining units.
Employees will feel the effects of this decision in highly fragmented, “micro” bargaining units that are easier to unionize and harder to contest. In the end, business has a divided workforce.
2. The notice of the right to unionize sent the Chamber of Commerce into cardiac arrest.
On August 25, 2011, the National Labor Relations Board (NLRB or “the Board”) issued a final rule entitled Notification of Employee Rights under the National Labor Relations Act. This rule mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizes employers for non-compliance.
Member Brian Hayes dissented and ended his written dissent by expressing his opinion that “a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.”
The final rule requires employers to post a specific form notice that begins with the following preamble:
The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.
The required notice also informs employees of specific rights afforded them under the NLRA, such as the right to:
- Organize a union to negotiate with their employer concerning your wages, hours, and other terms and conditions of employment
- Form, join or assist a union
- Bargain collectively through representatives of their own choosing for a contract with the employer setting wages, benefits, hours, and other working conditions
- Discuss wages and benefits and other terms and conditions of employment or union organizing with co-workers or a union
- Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union
- Strike and picket, depending on the purpose or means of the strike or the picketing
- Choose not to do any of these activities, including joining or remaining a member of a union
The required notice then contains a section that explains the concept of collective bargaining, as follows:
If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.
The notices must be posted physically and electronically following these guidelines:
- Post the notice in a conspicuous place that is readily seen by employees, including all places where other notices to employees are posted
- Post the notice on the employer’s internet or intranet site if the employer customarily posts notices to employees about personnel rules or policies on those sites.
The possible impact of required posting may cause some employees to discuss and explore unionization, and posting could well increase employee-driven (as opposed to union-initiated) campaigns. As a result, employers may want to consider taking a more proactive approach to the notice requirements, including conducting the supervisor training mentioned above and undertaking a strategic analysis of the workplace and potential vulnerabilities.
Part II will discuss handbook policies, card check recognition and increases in 10(j) Federal Court injunctions. – Ed.
(Rebecca Smith is a former Teamster who now owns Taltos Consulting, Inc. and is a lead consultant for the Labor Relations Institute. She volunteers with the Wounded Warrior Project and St Jude’s Children’s Hospital.)