NLRB 'Working Overtime' to Boost Unions, Attorney Warns
Non-Union Shops Should Brace for Faster Elections and Facebook-Fueled Organizing Campaigns, Says LeClairRyan's Mark Goodwin
Apr 26, 2012, 09:30 ET
WASHINGTON, April 26, 2012 /PRNewswire/ -- The National Labor Relations Board is committed to making it easier for non-union employees to engage in collective bargaining—and that means many U.S. businesses ought to ramp up their efforts to stay union-free, warned a veteran labor and employment attorney for the national law firm LeClairRyan.
"The changes afoot at today's NLRB include a new rule that, if not enjoined by a federal court prior to April 30, will have an enormous impact by speeding up union-organizing elections," said Mark B. Goodwin, a Washington- and Richmond, Va.-based member of LeClairRyan's Labor & Employment practice team. "The Board has indicated that it is ready to go full force under the new regulations should the court let them stand, and the NLRB General Counsel's office has been taking steps to make sure NLRB's regional offices are ready to go as well."
And as Goodwin noted during an April 19 webinar sponsored by the firm ("NLRB Enhancement of Union Organizing: How Employers Should Respond Now"), the quick-election proposal is just one of several pro-union initiatives now being pursued by today's majority-Democrat NLRB.
"This month the board is rolling out a new website designed to promote concerted activity among the 93 percent of private industry that is still non-union," Goodwin said. "Part of its mission will be to help employees leverage what might be thought of as 'the new water cooler'—the likes of Facebook, Twitter, LinkedIn and Google+." In tandem with this, NLRB recently clarified that social media conversations about workplace issues might well be protected under Section 7 of the National Labor Relations Act. "Taken together, all of this clearly enhances the ability of non-union employees to join forces using today's powerful, web-based tools," the attorney said.
During the LeClairRyan-sponsored webinar, Goodwin discussed the potential ramifications of the NLRB's election rule changes, now under consideration by The U.S. District Court for the District of Columbia. "Balloting could occur 15 to 30 days after a petition is filed, giving employers far less time in which to counter union-organizing efforts," he said. "There is a lot of opposition to the change: One dissenting NLRB member said it would 'eviscerate' the ability of employers to express their views on collective bargaining, and the U.S. Chamber of Commerce says the changes have 'no conceivable purpose but to make it easier for unions to win elections.'"
Nonetheless, action in Congress is unlikely to derail the proposal, Goodwin said. If the court allows the rule changes to stand, employers will be more likely to rush actions, messages and meetings without full deliberation and planning with their attorneys. "This could lead to flagrant legal violations," Goodwin noted. "Based on U.S. Supreme Court precedent, a bargaining order could result even if the union loses the election."
The webinar also covered topics such as the best pre-petition practices for preventing unionization, and best practices to counter social media tactics by would-be union organizers. Other pro-union changes are on the horizon as well, Goodwin noted. "If it is affirmed by a federal appeals court in the fall, a new rule will require employers to post notices of union organizing rights in conspicuous locations throughout the workplace," he said. "In addition to enumerating the rights themselves, the posters would outline employer actions that illegally interfere with such rights, and they would provide information on how and when employees should reach out to NLRB."
Non-union businesses should be training or retraining their managers and supervisors on tactics and strategies aimed at maintaining their non-union status, Goodwin advised. "They also need to be preparing their materials, putting them in the can if you will, so that they are ready if there is a quick election," Goodwin said. "With the lackluster economy, employers have been trying to keep their costs for prevention programs very low. That is understandable. But given the changes afoot today, businesses need to allocate more time and resources to staying union-free. Otherwise they run the risk of being penny wise and pound foolish."
As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.
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