Last week, President Obama used his authority to make recess appointments when he appointed two new members to the National Labor Relations Board (NLRB). By virtue of this action, the NLRB now has a pro-union majority. One of the two new appointees is on record as advocating changes as radical as removing employers as one of the parties in the labor-management relationship.

What can we expect? Nothing short of a transformation in workplaces across the U.S. Here are just two of the actions the Board is likely to order:

• Replacement of current secret ballot elections for union representation with a “card check” process. This action would make passage of the Employee Free Choice Act (EFCA) by Congress a moot point with respect to this issue.

• A narrower definition of the term “supervisor” that would enable more employees to be covered by current labor laws. Thus passage of the currently proposed RESPECT Act would become a moot point for this issue.

If you are wondering how three people single-handedly can have a transformative impact on the employee-employer relationship, I invite you to get up to speed by reading two articles I wrote last fall. (Although there are five positions on the Board, the three Democrats have long records of taking pro-union positions. Similarly, Republicans appointed to the Board traditionally have records of taking pro-management positions. Note that “pro-union” is not necessarily the same as “pro-employee.”)

What You Don’t Know about the NLRB Can Hurt You lists seven facts about the Board that employers and employees need to know. For those who don’t think they need to pay attention to what’s happening, the first two facts might change your mind:

• The NRLB consists of five people whose decisions have the effect of federal law. These decisions change how existing labor laws are interpreted and administered. They do NOT need Congressional approval to become the law of the land.

• Board decisions affect ALL covered employees, not just those who belong to unions. With some exceptions (e.g., government workers, railway and airline workers), Board rulings affect the rights of non-unionized employees and employers.

The second article, Seven Tips to Prepare for the New NLRB, lists six legal and ethical contingent actions you can take to reduce the likelihood that anticipated NLRB rulings will have a negative impact on the employer-employee relationship in your organization.

In short order, employers and employees will have to learn how to interact with each other in what promises to be a new world of labor-management relations. Do you have the facts you need? For more information on this topic, contact us.

© 2010 Pat Lynch. All rights reserved.

The five-member National Labor Relations Board (NLRB) has the power to effect substantive changes in laws that cover non-union as well as union workplaces. Given the anticipated shifts toward union-friendly rulings identified by Board Chair Wilma Liebman in her dissents to previous Board rulings and in her Congressional testimony, employers who would like their workers to choose to remain non-union would be well advised to take legal and ethical actions NOW to mitigate the negative effects such rulings may have on them and their employees. Below are one preventive action and six contingent actions management can take in anticipation of these changes.

The most effective antidote to outside intervention is preventive action — i.e., make a conscious decision to place a high priority on your employees. Create an employee-centered workplace™, which I define as an environment in which every person, system, program, and process is focused on helping employees become fully successful. Since everyone wins when employees are fully successful, why would you NOT choose to make them a high priority?

Here are six legal and ethical contingent actions management can take to prepare for the effects of the anticipated NLRB rulings on the employer-employee relationship:

1. Monitor NLRB rulings and Executive Orders closely. Get expert help if necessary to identify the impact the changes they will have in your workplace. Be pro-active; don’t wait for the decisions to be handed down before you take action.

2. Do not discriminate against employees on the basis of union activity or membership – it is illegal to do so. Management can avoid engaging in illegal activity by applying workplace policies consistently and enforcing them rigorously.

3. Educate all levels of management about employer rights and responsibilities as well as about what constitutes legal and illegal behavior.

4. Hold managers strictly accountable for acting legally and ethically.

5. Educate employees NOW about management’s position on unionization in ways that they do not perceive as threatening or intimidating. Inform them of their right to join or refrain from joining a union. The timing for disseminating accurate and complete information to employees is important: “employer neutrality” clauses may prohibit such communication in the near future.

6. Become familiar with the previous NLRB rulings targeted for reversal and make relevant adjustments to organizational policies NOW.

The saying, “The best offense is a good defense” is good advice for both employers and employees. Taking the preventive action of making employees a high priority in the workplace will reap benefits for organizations in terms of higher productivity and profitability, and for employees in terms of fair treatment. Coincidentally it will decrease the likelihood that employees will see a need for union intervention. Management decisions and behaviors in the workplace will inform employees’ choices about union representation. What is your choice?

© 2009 Pat Lynch. All rights reserved.

It is safe to say that relatively few employers and even fewer employees can accurately identify the National Labor Relations Board (NLRB) and describe its role. Yet this five-member panel is about to transform the nature of the workplace. Here are seven things employers and employees need to know about the NLRB.

1. The NRLB consists of five people whose decisions have the effect of federal law.

The Board’s rulings come in the form of decisions about unfair labor practices filed by employers or by unions. Because the rulings involve interpretations of the National Labor Relations Act (NLRA), they do not need Congressional approval to become the law of the land. While the Board cannot change the provisions of the NLRA, it can change how the law is interpreted and administered. Its rulings may be challenged in federal appeals court.

2. Board decisions affect ALL covered employees, not just those who belong to unions.

With some exceptions (e.g., government workers, railway and airline workers) the NLRA covers unionized and non-unionized workplaces in the private and non-profit sectors with one or more employees. Thus Board rulings affect the rights of non-unionized employees and employers.

3. The Board is a highly politicized body.

Over the years the NLRB has become an increasingly politicized body whose members’ decisions reflect their political party affiliations. Rulings made by a Democrat majority typically favor unions, while those made by a Republican majority tend to favor management.

4. Once President Obama’s three Board nominees are confirmed by the Senate, the NRLB will have a Democrat majority.

The new Board Chair, Wilma Liebman, is a Democrat, as are two of the three individuals nominated by President Obama to join the Board. Ms. Liebman is on record (through her testimony before Congress as well as in her written dissents to previous Board rulings) as advocating significant changes that diminish current employer rights and increase unions’ rights in the workplace. (See specific examples in #7 below.)

5. The NLRB regularly reverses previous Board decisions.

Unlike courts of law, the Board does not treat previous decisions as precedent-setting. In fact, it reverses rulings of previous Boards with some regularity. Further, Board decisions are not subject to the debate, hearings, and media attention that accompany much federal legislation. NLRB decisions fly under most employers’ radar.

6. U.S. labor law changes with each new or reversed Board decision.

Because Board decisions have the effect of law, the law changes with each reversal. In addition, a decision in one case changes the law for ALL covered workplaces. Unless employers realize this fact and track NLRB decisions closely, they easily and unwittingly may violate federal law.

7. The new NLRB Chair has been very specific about what she wants the new Board to change.

Some of Board Chair Liebman’s desired changes include de-emphasizing employers’ rights such as free speech, establishment of work rules, and access to employees; providing enhanced rights for temporary and contingent workers; enabling supervisors to join unions; broadening the definition of “protected activity;” allowing unions electronic access to employees (e.g., via employers’ e-mail systems); and requiring employers to provide more extensive financial and operational information to unions.

The bottom line: you ignore NLRB rulings at your peril. While even some management attorneys acknowledge that Board decisions made recently, especially during the Bush years, went too far in favoring employers, statements by Chair Liebman indicate her intention to push the pendulum to the other extreme. Are you prepared for the upcoming wild ride?

© 2009 Pat Lynch. All rights reserved.