Over the past couple of years there has been a lot written about the changed makeup of the National Labor Relations Board (NLRB), the resulting expected reversal of a number of labor law rulings that employers must abide by, and the table tilting towards the unions at the expense of employers.  The NLRB majority is now comprised of individuals who held employment as legal counsel for unions or who worked a member of a law firm representing unions.  For the most part, such changes are expected when political winds shift.  But there is new artillery being wheeled onto the battlefield.

Most employers who are alert and taking nourishment – and those who have read this blog – are probably fairly abreast of these changes already.  For example, decisions like Specialty Healthcare and Bergdorf Goodman make it easier for unions to win elections.  In Bergdorf Goodman, the union was successful in getting an election of just the female shoe department employees (on two different floors of the store, no less), and fending off the employer’s efforts to have the election among all store retail employees – not just those of the shoe department.  The NLRB Regional Director wouldn’t even include sales helpers of those female shoe salespersons.  Of course, the union knew it had a pocket of sympathetic folks in the shoe department, as opposed to the whole store.  It would have been a much harder fight to convince a majority of the entire store that they needed a union.  So, cherry picking made it easier to win.  That same tactic has now been used by a union at a Mercedes Benz dealership in the south (picking off just service technicians and wheel alignment employees), at a rental car agency at the Denver airport (picking off just the counter agents), and at a nursing home (Specialty Healthcare, where just certified nursing assistants were singled out).

Just as discouraging was the Board’s new rule requiring all employers to post a poster in each workplace advising employees of their rights to join a union.  Most employers jumped stiff legged at that one.  Thanks to several employers and business trade groups, however, federal courts in South Carolina and Washington, D.C. stopped that rule from taking effect, at least for now.

But wait.  There’s more.  Don’t forget the NLRB has publishing rules that shorten the time between when a union files a petition to represent your employees and the time an election will be held.  Or how about the fact that law firms who help employers engage in the battle leading up to that election now may be less willing to do so because of new reporting rules requiring them to disclose who they work for and how much they are paid to do that work.

The latest effort is a web page created by the NLRB, coincidentally coming right on the heels of losing at least the initial battle about the posters.  The web page is a well done piece allowing someone to mouse over a map and see where non-union workers have been set upon by employers for speaking out about their working conditions, wages and other things.  The site tells their story and concludes by illustrating how turning to the NLRB or a union for help saved the day.

To be sure, employers who break the law by firing employees who complain about working conditions should be taken to task.  Employers must be smart enough to know that employees have the right to honestly speak out on their own behalf and that of others about wages, hours and terms of employment – regardless of whether there is a union.

Still, and maybe it’s just us, but all of this sure seems like the government has chosen sides and decided to handicap employers wherever it can.  Let’s be honest, no employer wants a labor union to be the intermediary between it and its employees. Sure, we are fully aware of some instances where unions and employers get along just fine.  But heaven help you if you don’t.  Sometimes that work environment can go from civil to uncivil simply because of a change in local union leadership.

But that is not the point of this newsletter.  The point is, ignorance is not bliss.  There is a war going on out there for the hearts and minds of your employees.  The NLRB is doing everything it can to get out the word that, as an employee, you may want to seek the protection of a union or the government.  There is a fine line somewhere between stirring up discontent and providing information.  You decide.  The quote from NLRB member Pierce on introducing the web page is this:

“A right only has value when people know it exists. We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.”

Unions used to represent 38% of the workforce.  In the 50’s through the 80’s, strikes were common.  Now, unions have paid organizers, and access to the media and internet just like everyone else.  They have paid professionals and money in treasuries to blow loud horns and speak from bully pulpits.  Rich Trumka and other union leaders appear on nationally syndicated TV shows.  Unions even own large, inflatable rats to get your attention.  What male (at least) was unaware of NFL or NBA labor disputes?  Can anyone seriously believe that in today’s media-saturated world that the knowledge of unions or the ability to seek one out is a well kept secret?  What’s next – sitting each employee down and giving him a wallet card with the 800 number of the AFL-CIO organizing department?

We think there is a war going on out there.  Unions are being aided in that war like never before.  As an employer, if you don’t make efforts to know your employees, take interest in their concerns and well being, and listen to them, you are more at risk of losing them than ever before.    Take the time to check the pulse of your workplace.  Don’t let bad supervisors continue to negatively impact folks.  And get help if you don’t know what to do or how to do it.  If the battle for your employees’ hearts and minds moves to your doorstep, it will be a much harder fight than you have ever engaged in before.  If you lose that battle, you will regret it.

David Dick has a unique background of hands-on executive experience, prior to entering the practice of law. For 15 years, Mr. Dick was employed in a number of human resource management positions, both plant site and corporate, at numerous locations by FMC Corporation, a Fortune 150 diversified manufacturer with over $4 billion in sales.
» See more articles by David E. Dick
» Read the full biography of David E. Dick at Steptoe & Johnson

Leave a Reply

Your email address will not be published.