Increased NLRB and Union Activity Puts Employers on Alert

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NEW YORK—Relief felt by employers over repeated failed attempts to revive the Employee Free Choice Act (EFCA) may be premature as employers face new pressures posed by a resurgent labor movement and a more union-friendly National Labor Relations Board.

Recent actions by the NLRB, including a June 22, 2011 proposal that would speed up the union election process, have many private-sector employers bracing themselves for a possible renewed organizing push by unions across the country. While union membership has been steadily declining since its peak in the 1950s, recent battles over collective bargaining rights in Wisconsin and other states, and a more labor-friendly Obama administration, appear to have re-energized labor activists.

The recent NLRB proposal, which would shorten the time between the filing of a petition to take a vote on joining a union and the actual election, is viewed by employers as depriving their employees of an opportunity to hear an opposing or balanced employer’s view. An organizing campaign under current law lasts about 40 days, but the new EFCA proposal could compress it into as few as 10.

In addition to the NLRB proposal to accelerate elections, the Labor Department issued a June 22, 2011 proposal to clarify when employers must publicly disclose agreements made with labor relations consultants advising them during an organizing campaign. The move to regulate what the Labor Department calls “persuader activities” is widely viewed as another boon for unions. Business leaders have also openly opposed the NLRB’s recent unfair labor practice complaint against aerospace giant Boeing Co. Charging that the Chicago-based manufacturer was retaliating against its largest union by moving production of its 787 Dreamliner to a non-union plant, the NLRB recommended in April that Boeing shift the work to a union facility in the state of Washington. The recommendation clearly demonstrated the NLRB’s intrusion into the Board room of American businesses, and is viewed as the Board overstepping its legal charter. That same month, the NLRB filed lawsuits against two of four states with constitutional amendments barring private sector employees from organizing using the card check method, which was a key component of EFCA.

Given these recent developments, employment law attorneys are urging HR managers and business owners to review their policies to ensure compliance with the National Labor Relations Act, to stay informed on laws and regulations and union tactics, but most of all, to stay connected with their employees.

Hedley Lawson, Contributing Editor