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Labor: New NLRB rules give unions a leg up

If the rules pass, employers will have a harder time preventing unionization.

With college basketball in full swing and the NBA returning later this month, it seems that the Obama Administration is perfecting its own back-door pass when it comes to easing union organizing rules.

By the end of this year, it’s likely that the National Labor Relations Board (NLRB) will approve new rules that will make it easier for employees to join or form unions. It’s an ironic twist considering the Obama Administration’s failed efforts to pass the Employee Free Choice Act (EFCA), which would have essentially done the same thing.

After the EFCA failed, the President stated: “there are a lot of things that we’ve been doing administratively to try to make sure that people have a fair chance to organize.” Fast forward to today and the President’s words have become prophetic.

EFCA would have made every non-union company more vulnerable to unionization by eliminating the secret ballot election and employers’ ability to mount a campaign prior to an election. Likewise, the recently proposed NLRB rules will restrict employers’ ability to address legal issues prior to those same elections.

So what’s an employer to do? First, employers must recognize that with three voting members, two of which are supporters of the changes, it is likely that the NLRB will place into effect rules that make it easier for employees to join or form unions. The NLRB will do this by significantly expediting the election process, requiring that any election-related appeals be consolidated into a single post-election process and making Board review of post-election decisions discretionary rather than mandatory.

Employers can prepare for this new climate by forming strategic response teams to immediately address any organizing efforts. They can also implement and/or enforce no solicitation and no distribution policies and promote positive work place morale so that employees do not feel the need to look to an external source, such as a union, to address workplace issues.                                                                                      

However, there is a slim possibility that the new rules will not go into effect. Board member Becker’s recess appointment will end when the Senate adjourns for recess prior to the end of the year. If the new rules have not been passed prior to the expiration of his recess appointment, they will not go into effect because the NLRB will lack the quorum necessary to vote on and implement the new rules.

Regardless, it will be incumbent on employers to draw up a defense that can “break up” that back-door pass for if and when the new rules take effect.

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R. Anthony Prather

R. Anthony Prather is a partner in the Indianapolis office of Barnes & Thornburg LLP and a member of the firm's national Labor and Employment...

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