Since the election of Barack Obama, employers who have maintained a union-free environment have had to deal with a number of bizarre new decisions and rules by agencies in the Obama administration that have been attempting to make union organizing easier for employees and much more difficult for employers to resist. All of us remember the failed attempt with the Employee Free Choice Act (EFCA) but, employers cannot rely on the fact that the failure to pass the EFCA will continue to provide positive benefits in 2014. Employers that fail to act and reinvent their union-free strategies to meet the game changing challenges on the horizon will face serious problems.

It is expected in 2014 that the Department of Labor will have reissued its new interpretations of the Labor Management Reporting and Disclosure Act (LMRDA) that will redefine the public reporting requirements for employers that use third-party consultants or attorneys to help them establish and implement union-free strategies or to combat organizing. This will change the lay of the land and will probably negatively impact what attorneys and/or consultants can do in providing guidance for employers.

In 2012, the National Labor Relations Board (NLRB) published a series of rule changes to force speedy representation elections and to restrict – in the opinion of the writer of this article, eliminate – the ability of employers to affect litigation of issues with regard to the appropriateness of a requested bargaining unit and voter eligibility. Many of us recall that these proposed rule changes were enjoined by a court in May 2012 but, that may be short lived. The Chairman of the NLRB, Mark Pearce, has recently signaled that he wants to reissue these rules and, with the pro-union majority on the current NLRB, this will probably be done quickly. These rules will change the “rules of the game” by shortening the time between the filing of a petition and an election and, in fact, may change the time between the filing of a petition in an election to only fourteen (14) calendar days. Currently, the NLRB’s goal is to have an election within forty-two (42) calendar days of petition filing. Another series of these changes could eliminate the ability of employers to litigate the appropriateness of the bargaining unit as requested by union and voter eligibility in any hearing on the union petition. The employer would be unable to stop an election in a unit as small as a single classification within its operation and potentially could be limited in determining who is and who is not a supervisor and, therefore, would not know who could be required to participate on behalf of an employer in a campaign as a spokesperson or provide information to an employer with regard to voters’ concerns and attitudes. This type of upheaval will make it almost impossible for an employer to get its message out to the voting group.

There are three current NLRB cases that can also have a great impact on future union organizing:

• Specialty Healthcare (357 NLRB No. 83 (2011)) rejected the NLRB’s longstanding presumption in favor of wall-to-wall or large units by establishing that employee voting units, perhaps as small as a single job classification, would be found appropriate in the future. It is significant that this NLRB decision placed a very strenuous burden of proof on an employer to prove that a requested unit by the union was inappropriate. Going forward, the employer’s burden would not just be “persuasion” but the employer would be required to establish by “overwhelming evidence” that the requested unit would be inappropriate if it included or excluded certain other employees. This may be a burden that is very difficult to achieve. One can only speculate as to how multiple individual units within a single workforce would impact an employer’s ability to deal with such a situation – it could be a situation of constant bargaining on multiple contracts; loss of job flexibility with regard to cross training and movement among classifications and a host of other potential operational difficulties that would make it either impossible to run a day-to-day operation. It should be noted that since the decision in Specialty Healthcare, Regional Directors have directed the election in units of cosmetic and scent employees at Macy’s and, for example, women’s shoes at Bergdorf Goodman, certainly not the traditional “wall-to-wall” store units.
• Two cases, Oakwood Healthcare (348 NLRB No. 37 (2006)) and Croft Metals, Inc. (348 NLRB No. 38 (2006)), are now being applied vigorously to define who is and who is not a “supervisor.” Under the National Labor Relations Act (NLRA), supervisors are not considered employees and therefore are not entitled to its protections. More importantly, supervisors are the front line communicators and, in the opinion of the writer, the best representatives of an employer in a union election scenario. If they are not able to be clearly identified, an employer has a vexing problem. Employers would be left uncertain as to whether a specific individual is a supervisor until after an election occurred. Actions taken with regard to that individual might be the basis of an Unfair Labor Practice Charge because the employer interfered with “an employee that it included in its supervisory strategy sessions regarding union activity.” Perish the thought that an employer who determined an individual was a supervisor and told that person to take certain actions which the individual refused to do with regard to communicating the employer’s position and the employer then fired that person. This “unidentified supervisor” is an untenable situation and places an employer in a “damned if you do and damned if you don’t” dilemma with regard to how it treats individuals and uses them as advocates or sources of information.

While this article is not intended as an all is lost pictorial, it is intended to alert employers that the future may be changing with regard to an onslaught of union organizing and that every employer who wants to maintain their non-union status should take precautions to deal with that issue now rather than face these issues with the union organizer at the door.

Questions? Contact Walter J. Liszka in the Chicago office at waliszka@wesselssherman.com or by phone at (312) 629-9300.