Labor Relations Board Is Changing, but Stay Aware of Union Organizing Risks

While some labor relations issues are likely to go away, industry and PR liabilities persist

By Allen Smith, J.D. Mar 15, 2017
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​Union organizing remains a hazard for many organizations, even though the National Labor Relations Board (NLRB) is likely to undo many of the employee-friendly rulings issued during former President Barack Obama's administration.

Companies should assess the labor relations and PR risks of unionization and address them. They should consider geography, industry and competitors, and analyze engagement and treatment within their organizations to determine how vulnerable they are to union organizing, said Phillip Wilson, president and general counsel of the Labor Relations Institute in Broken Arrow, Okla.

Simple steps can improve engagement, noted Michael VanDervort, executive director of CUE Inc. in Atlanta, who led a session with Wilson on March 14 at the Society for Human Resource Management Employment Law & Legislative Conference in Washington, D.C.

Managers who simply say, "hello," "please" and "thank you" can help improve engagement, he said.

Workers may not be so easily assuaged, though, if there are larger changes within an organization, such as a relocation of operations.

Tread carefully--some public relations risks are entirely new. There's now the risk that President Donald Trump may tweet something unfavorable about a company that moves operations out of the country, and the stock price will get hammered, Wilson noted.

Labor Relations Rulings

But many labor relations risks may be going away after upcoming vacancies on the board are filled by Republicans. (The five-member board typically has three members from the president's party and two members from the opposing party. It currently has three members—two Democrats and one Republican.)

NLRB rules and decisions that are likely to be undone by the board under Trump include:

  • The quickie election rule, which reduced the time between petitioning for a union election and the vote from 36 days to now approximately 25 days, Wilson said. A union election may follow a petition for election in some cases by as little as 11 days under the rule.
  • The micro-bargaining unit decisions, permitting the certification of small bargaining units within an organization for unionization.
  • The joint employer decision in Browning-Ferris Industries (BFI) of California (362 NLRB No. 186), where the mere potential to control the terms and conditions of employment, even if the control is indirect or unexercised, were enough to show joint employment.
  • The prohibition on making investigations confidential.
  • Graduate assistants' ability to unionize at private universities.

These NLRB decisions are "just the tip of the iceberg," Wilson said, noting that there are decisions spanning eight years that the board will seek to undo, once the vacancies are filled and the cases take time to work their way up to the board.

Risk Assessment Factors

Geography, industry and competitors may put a company at high risk for unionization. Retail, restaurant and construction industries all are examples of work more commonly unionized. The Northeast and Midwest are more highly unionized than the South. And if a company's competitors are unionized, a company is at a high risk of becoming unionized, Wilson said.  

If a corporation is publicly traded, it's at a higher risk of unionization, partly because of a higher risk of PR pressure, he added. When part of an organization has union and nonunion environments, the nonunion environments are at a higher risk of unionization.

Simple Steps

So, what can an employer do if it determines it is at risk of unionization?

[SHRM members-only HR Q&As: What can management do during a union campaign?]

HR and managers can take simple steps to improve engagement and treatment within an organization, VanDervort noted. These include:

  • Being approachable.
  • Resolving problems early with open-door policies.
  • Ensuring safety programs are active.
  • Recognizing employees for outstanding performance.
  • Training supervisors.
  • Ensuring management communicates with front-line employees.
  • Auditing for consistent policy administration and trust in supervision.

Employers that do these things will be a "long way down the road" toward employee engagement, he said, and "then can think about more strategic plans."

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