On Jan. 25, 2012, Mark Pearce, the new chairman of the National Labor Relations Board (NLRB), the Federal agency charged with overseeing the relationship between unions and employers, announced that he would push for new rules that would give organized labor a “boost” in recruiting new members. Pearce, one of President Obama’s three new recess appointments to the NLRB, has ignited a firestorm of controversy that has left employer groups howling in protest.

As we discussed in my last column, the NLRB has sought to make union organizing easier through a variety of devices. Briefly, these include:

• Mandatory display of an official NLRB poster that informs all employees of their legal right to form and join unions;

• Speeding up the holding of secret ballot elections and eliminating most pre-election hearings (this has the effect of depriving employers of the time they need to counter union propaganda and educate the workers about the employer’s point of view). Pundits promptly labeled this kind of expedited balloting “ambush elections;” and

• Allowing elections to be held among small groups of employees, thus making it easier, quicker and cheaper for unions to mount “mini-campaigns” instead of large and costly company-wide campaigns (these small groups have been coined “micro-units” and allow unions to gain a foothold within a company without major effort).

Among other measures proposed by the NLRB are:

• Permitting the filing of election petitions electronically;

• Requiring employers to hand over lists with the names and addresses of their workers to union organizers at an early stage of the election campaign; and

• Assessing large fines against employers found to have violated the law and seeking injunctions where employers are believed to have violated the law.

In the face of this decided tilt by the NLRB in favor or organized labor, what are employers to do? Out of necessity, in order to protect their own rights and those of their workers, employers will be forced to wage what I like to call the “perpetual campaign.” In reality, this is nothing more than a program of preventative measures designed to acquaint workers with the pros and cons of union membership.

The essential elements of a well-thought-out program include:

• Consulting a labor lawyer who can explain what the employer can and cannot say and do. Labor law is a minefield. In the current legal climate, it is frighteningly easy to violate the law — often with catastrophic consequences.

• Educating your managers and supervisors — your front line troops in any campaign — about the issues. If they don’t know your position, they can’t get your message out to the workers they supervise.

• Creating an employee handbook. Unions frequently show their contracts to workers that they are trying to organize. Regardless of whether these contracts are great or not, they show the workers in black and white what they are entitled to. You can beat the union at its own game by creating a handbook that does the same thing.

• Keeping your door open to employees. Too many times workers believe that nobody at the company will listen to their complaints and concerns. By joining a union, they think they are going to get a spokesman to whom the boss will have to listen. By welcoming employees to communicate directly, you eliminate the need for a “middleman.”

• Avoiding overreacting. This is the most important point. Many employers react with blind panic when they think a union is sniffing at their gates. Some employers lash out by firing perceived union sympathizers. This only creates “martyrs” for the union’s campaign and lands the company in hot water with the NLRB. Other employers do exactly the opposite by granting raises and coddling workers who break the rules. In the eyes of the workers, this only empowers the union. They think “if the boss is doing all this now, he’ll really jump when the union actually represents us.”

In my next columns, we’ll discuss exactly how to implement each of these steps.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.




POSTED ON: 2/22/2012