by Matt Barkett

September 5, 2023

On August 25, the National Labor Relations Board (NLRB) issued new guidance that will allow unions to organize employees without a formal election. This ruling reversed more than 50 years of existing procedure and signaled a sea change in how unions are able to infiltrate companies and entice employees to join their ranks, further complicating the process of keeping your facility union-free.

Not unlike the U.S. Supreme Court, the makeup of the NLRB is driven by political appointment and can change from liberal to conservative with the shift of the administration when a new political party comes into power. With Democrats currently in charge, the NLRB has become much more oriented to helping unions gain traction and expand their influence in companies across the country.

So what can a company that seeks to remain union-free do? I spoke with Jim Drozdowski, a Dix & Eaton consultant and longtime employment attorney with KDG Legal. He offered these three primary considerations:

1. If a union demands recognition at your workplace, ACT QUICKLY. Under the old rules, an employer could simply decline recognition and force the union to muster enough support to file an election petition with the NLRB. Now, that burden has flipped. If the employer fails to “promptly” file a petition seeking an election, it will be required to recognize and bargain with the union. How “prompt” is prompt enough? Under the NLRB’s ruling in Cemex, an employer must file its election petition within two weeks of the union’s initial demand for recognition.

2. Manage your workforce in a fair and consistent manner every single day. Poorly managed workplaces are particularly vulnerable to union organizing efforts. Worse yet, under the NLRB’s ruling in Cemex, if an employer seeking an election any unfair labor practice that would require setting aside the election, it’s game over. Rather than re-running the election, the NLRB will order the company to recognize and bargain with the union. What’s the most commonly filed unfair labor practice charge? Alleged wrongful termination of known union supporters. What’s the best defense to that charge? An established commitment to fair and consistent management of your workforce.

3. Training, training and training. There’s often a fine line between appropriate manager conduct and what the NLRB considers to be an unfair labor practice. Some of the rules are intuitive, and some are far more subtle. Having disciplined and well-trained managers who understand the difference between the two is the only way to survive an election campaign – and may prevent you from getting there in the first place.

A common theme in having good employee relations is open, direct and honest communication with your employees. Doing that well requires a robust employee communications program that ensures clear guidance for employees about their roles, establishes an understanding of advancement opportunities through a personalized growth path as part of each employee’s development plan and, most important, a feedback loop for employees to vocalize the positive and negative aspects of their jobs and your overall operations. Helping employees feel heard and appreciated can often be the difference between a union-free organization that has direct relationships with its employees versus one that has a union in the middle of every decision you have to make.

Want to talk more about labor relations and employee communications in this new environment? Email Jim and Matt.