NLRB’s One, Two Punch – A Challenging Landscape Ahead for Non-Union Employers

By Matthew Tews

The National Labor Relations Board’s (NLRB or Board) proposed changes to union representation election procedures, along with the recent affirmation of its Specialty Healthcare decision, are primed to create a challenging legal environment for non-union employers. Working in tandem, these rules will make it much more difficult for non-union employers to combat union organizing efforts within their businesses.

NLRB’s One, Two Punch

The Board’s proposed changes to representation election procedures, announced earlier this month, will sharply limit an employer’s time and ability to challenge election issues and to educate its employees about their important unionization decision. Under current NLRB rules, representation elections typically occur between 35 to 40 days after a union files a petition asking for such an election, and most issues between the union and employer can be decided at a pre-election hearing.

Under the proposed changes (which will likely be finalized in the summer of 2014), elections will occur much sooner, perhaps as early as 10 days after the petition is filed. In addition, the changes require employers to provide the union with employee phone numbers and email addresses, and defer most issues between the parties to a post-election hearing. In short, these changes will significantly hamper an employer’s ability to respond to the union’s petition, inform its employees about its position on the election, educate employees on important facts to consider about unions and collective bargaining, and challenge any issues about voter eligibility.

These proposed rule changes come on the heels of the Board’s 2011 decision in Specialty Healthcare, which has already made it much more difficult for employers to challenge the narrow scope of a union’s proposed bargaining unit. In Specialty Healthcare, the Board concluded that an employer challenging the appropriateness of a unit on the basis that it does not include certain employees must show that “the excluded employees share an overwhelming community of interest with the included employees.” The “overwhelming community of interest” standard has, as expected, been difficult for employers to meet.

In one well-known case, an NLRB Regional Director approved a unit consisting solely of women’s shoe salespeople, despite the employer’s argument that its men’s shoe salespeople should be included in the unit. In practice, Specialty Healthcare has meant that organizing unions can “cherry-pick” which employees they seek to represent, improving their chances of winning a representation election.

This combination is a significant blow to non-union employers looking to remain union-free. Under Specialty Healthcare, unions are able to (for the most part) pick and choose which employees to target for an organizing campaign. After a union hand-picks the employees it wants to represent and files a representation petition, employers then have very limited time—maybe as few as 10 days—to respond to the union’s petition and educate their employees about the important decision. The ramifications of this “one, two punch” will leave the unprepared employer reeling and unable to effectively respond to union organizing activity.

A Proactive Defense

Given the Specialty Healthcare decision and impending changes to union representation election procedures, waiting until after a representation petition is filed to develop a strategy to deal with union organizing efforts may well be too late. Non-union employers desiring to remain union-free would be well-served to take a proactive approach to developing a plan before a petition is filed and before the new rules go into effect, tilting the playing field in favor of the unions.

Understanding the present work climate and its susceptibility to union organization; educating supervisors about unions and early signs of the organizing process; and understanding how to prevent conditions that often lead to organization efforts are key to creating positive employee relations and stopping the organizing process before it starts. Stinson Leonard Street’s traditional labor lawyers have been providing these services for more than 20 years.

Contact Us

If you would like to discuss any of these issues or their effect on your business, please contact Matt Tews or your usual Stinson Leonard Street LLP attorney. 


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