Union-Free Employers Facing New Challenges

Written by Scott M. Wich

In years gone by, union organizing took on a familiar tone. Organizers distributing leaflets near parking lots. Employees discussing authorization cards during break periods. While such traditional tactics continue to be used, unwary employers may be surprised at the rapidly changing organizing environment. Faced with record low rates of unionization in the private sector, unions have rolled out organizing efforts that have grown more stealthy and, if the National Labor Relations Board (NLRB) has its way, expedient.

One major change over the past years has been the rise of certain “worker centers” such as the Restaurant Opportunities Center and New York Communities for Change, which recently facilitated the “Fast Food Forward” campaign to increase fast food employee wages to $15 per hour. Such worker centers have engaged union organizing with a less traditional, community-action message. The U.S. Chamber of Commerce recently issued an in-depth study, available here, on the history and operations of such worker centers and the increasing challenges they present to union-free employers.

Unions have also embraced technology to move organizing efforts from under the employer’s roof to social media sites such as Facebook and website blogs. Employers have faced difficult challenges before the NLRB in regulating employee conduct in such online communities. Moreover, an unsuspecting employer may unknowingly be faced with a full-fledged union campaign through on-line and off-site means.

Lastly, since the first effort to pass the Employee Free Choice Act (EFCA), efforts have been underway to quicken the union election process. EFCA eventually failed. In response, the NLRB attempted to change its rules in order to allow for quicker elections. After legal challenges to the NLRB’s quorum, the changes were withdrawn. However, now with a full complement of five members, the NLRB has again announced proposed amendments to its election rules. Among other things, the proposed changes would significantly shorten the time between the filing of a representation petition and an election. Further, the amendments would require an employer to provide significantly more information, such as the phone numbers and e-mail addresses of its employees, to a petitioning union. A public hearing on the proposed amendments has been scheduled for the week of April 7, 2014.

How should a union-free employer respond to the changing organizing environment? In two words, “Be Proactive.” Properly trained supervisors can be attuned to the issues that may motivate employees to express interest in labor organizations as well as identify potential organizing efforts. Effective policies and procedures can help reduce the risk of unfair labor practices arising in the course of a union campaign. With organizing becoming more difficult to identify and, under the NLRB’s proposed election rules, more challenging to respond to, a proactive strategy is the best means of protecting an employer’s union-free status.

About the Author
Scott M. Wich
Partner
Mr. Wich is a regional attorney focusing on providing local, regional and national clients with services concerning management-related labor and...
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