What to Expect from an NLRB with a Slashed Budget

When President Trump released his 2018 budget, he slashed the NLRB’s apportioned amount by 6% and called for a staff reduction despite a projected increase to the Board’s caseload. The 6% reduction would result in the lowest total operating budget for the Board since 2009 (President Obama’s first year). Likewise, staff reductions would place the body-count at 400 below the 15-year average of 1,700 full-time employees. Right-sizing at its finest.

If Trump’s budget-slashing survives Congressional review, I expect several things to happen, all of which are good for companies.

  1. The NLRB will increase the pressure to settle unfair labor practice charges early to prevent NLRB personnel from having to travel to speak with potential witnesses. Companies with the ability to outlast the NLRB will be in a much better position than they are today.
  2. The NLRB will increase its time targets for deciding whether unfair labor practice charges have merit in the hopes that, given more time, a case will settle. The Board’s target dates for closing a file have become uncomfortably quick. This quickness results in more Complaints being hastily issued not based on sound legal principal, but based on investigators having to decide what to do before the end of the month. I bet you didn’t know Board agents (and Regions) are graded on how quickly they move a case along.
  3. NLRB witnesses will be less prepared for trial because NLRB attorneys will not have been able to meet with witnesses as much as in the past. Anytime the other side is underprepared is good for the Company’s defense.
  4. The processing time of representation petitions will be lengthened from the “ambush” election targets. Sweet irony. The Board will have a taste of its own medicine and probably won’t like it.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

Ambush Elections: Lies, Damned Lies, and Statistics

Regardless upon which side of the argument you sit, the statistics of the first 150 days post-ambush elections will help your argument. Management lawyers argue that the dire warnings were well founded. Pro-labor law reformists say the warnings were much ado about nothing. You should make up your own mind after learning the stats.

Union election petitions are up 9% and decertification petitions are down about 9%. Median days between the filing of an election petition and the election (with election agreement) is down from 37 days to 23 and (with directed election) down from 65 to 30, respectively. Median size of units shrunk from 28 to 23 workers. The percent of union election cases the union won dipped from 69% to 68% and the percent of decertification cases the union won remained the same at 40%.

So what’s your conclusion? Mine is that the data validates the predictions that the new processes will result in a shorter time frame in which employers do not really have time to prepare a campaign. This lack of time forces employers to prepare a counter-campaign even if they aren’t certain they will ever need it.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Healthcare and White-Collar Jobs: Unions’ Favorite Targets Since Ambush Election Rules Took Effect

The ambush election rules implemented on April 14, 2015, provide an increased advantage to unions attempting to organize workers by dramatically reducing the number of days between when a petition for a union election is filed and when the election is held. This advantage makes it critical for employers to know which industries have been the most vulnerable to unions using these rules to win elections.

One industry that remains a key target for union campaigns is healthcare workers. Unions are targeting employees such as nurses, nursing home workers, and physical therapists, and in some cases, have even organized doctors. Healthcare workers are an ideal target as they have higher wages and richer benefits, which means more profits to unions. Additionally, the healthcare industry has been strong, and with an aging population in the U.S., is forecasted to keep expanding, which provides some assurance to unions that they will remain relevant over time.

Unions are also targeting new industries, particularly those with white-collar workers. Recently the adjunct faculty members at colleges and universities, journalists, paralegals, secretaries, insurance agents, and even some judges, have voted to unionize. With the United States workforce continuing to move towards more white-collar jobs and off-shoring traditional blue-collar union jobs, companies should expect unions to continue their focus on white-collar workers.

Whether in healthcare or one of the white-collar occupations listed above, the rules have changed. These industries have employees who are computer literate and likely know of the advantage ambush elections have given them if they decide to unionize. Now, more than ever before, a proactive and robust union avoidance program is imperative to remaining union free.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

As Threatened, NLRB Implements Ambush Election Rules

Yesterday, I warned that the NLRB’s ruling to allow employees to use company-provided email systems for union organizing was perhaps the first of a flurry of pro-union rulings to be released between now and the end of the year. Today the NLRB “modernized” its union election procedures. The Board’s “modern” representation procedures are heavily slanted to favor unions winning representation elections and become effective on April 14, 2015.

Many of these changes are exactly as the Board threatened. A sampling of the changes that are most detrimental to non-union companies are:

Election Filing / Communications – Parties may file representation petitions electronically, instead of by fax or mail. This streamlined approach will reduce the number of days between the filing of a petition and the election, which reduces the number of days a company can campaign against unionization.

Election Voter List – The employer must include available personal email addresses and the phone numbers of voters on the voter list in order to permit the union to communicate directly with prospective voters using “modern forms of communication.” Employers must collect additional personal contact information from employees. On the other hand, employees will likely be inundated with unwanted spam emails and telemarketer-style phone harassment from Unions encouraging them to support an organizing effort at their workplace. Additionally, Companies must provide Unions with the job classifications, shifts, and work locations of all prospective voters.

Litigation of Eligibility Issues – Only issues necessary to determine whether an election should be conducted at all will be litigated in a pre-election hearing. This means that important issues, such as whether certain employees may vote in the election, will not be determined until after the election. For example, whether low-level supervisors, working foremen, or assistant managers are in or out of the unit will be left unknown until after the election. The impact of this cannot be overstated: The incorrect treatment of low-level supervisors during the campaign period could result in unfair labor practice charges for severely tainting the election, or worse, the automatic recognition of a union without an election.

Earlier Notification of Petition – Unions will be required to send a copy of the Petition for Election to the Company in addition to the NLRB. While Companies may welcome this courtesy, it further reduces the number of days between the filing of the petition and the election.

The “Dreaded 8-Days to Hearing” – According to the Board, “except in cases presenting unusually complex issues, pre-election hearings will occur 8 days after a hearing notice is served on the parties.” This hearing is critical to employers because it defines who is eligible to vote in the upcoming election. When Unions file the Petition for Election they craft a voter pool that is overwhelmingly in favor of being represented by the Union. The hearing is the Company’s opportunity to re-shape the group of eligible voters. Eight days is a staggeringly short time to prepare for the hearing. The following scenario will likely occur: Union files petition electronically shortly before midnight on a Thursday. Company may learn about it on Friday, but most likely on Monday. Management meets and decides to hire labor counsel; Company and counsel meet on Tuesday – the 5th day after the Petition is filed. Counsel is then left with just two days to determine who should be allowed to vote, gather evidence needed to succeed, identify and prep witnesses, etc.

While these changes were anticipated, it still stings to officially read about them. Companies that want to remain non-union must take a hard look at their operations, which employees or departments are susceptible to union organizing efforts, consider making adjustments to job classifications and duties, and pro-actively engage in union-free, pro-employee training. The Board has kindly provided non-union companies with 119 days to prepare for these changes, so it is advisable to make the most of them.

A full recitation of the changes and a chart comparing the current and new rules can be found on the NLRB’s website here.

Critical Immediate Steps to Help Stay Union Free in 2014

Micro-units and the National Labor Relations Board’s “overwhelming community of interest” standard are here to stay. Persuader rules and quickie ambush elections are right around the corner. An aggressive pro-union NLRB will make sure that 2014 is the year that unionization proliferates.

Companies wanting to remain union free must at least do the following immediately:

  1. Examine your organization to determine which job classifications or departments share skill levels so that they can be combined to make broad identifiable groupings.
  2. Flatten your management organizing so that more employees report to the same managers.
  3. Develop incentive plans or productivity measurements that cover the larger grouping.
  4. Cross-train employees in the larger group so that they can move easily across traditional job classifications and departments.
  5. Establish compensation grids and promotional opportunities that are common for all employees in the larger unit.

I know this is asking a lot and most companies think it is problematic and disruptive to the way they’ve always done business. But believe me, negotiating and administering a union contract and dealing with a union business agent is much more problematic and disruptive. 

Clients who have preemptively contacted me to help examine their company’s organization charts for union susceptibility are light years ahead of companies who think that their workers won’t go union. It only takes a few workers – literally 2 or 3 friends can get together – to get a union into your workplace.

Take proactive steps today to protect what you have spent years to build.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

Prognosticating The New NLRB

I recently discussed the nominees to the NLRB – but at that time they were just nominees. Now, that they are officially Board Members, let’s take a closer look at what we can expect from the fully staffed Board over the next year or so. After all, this is the first time in more than a decade that the Board is fully staffed and we don’t have to worry about any Noel Canning or New Process Steel issues.

My first conclusion is simple: the NLRB is extremely pro-union. Despite supposedly being a neutral federal agency tasked with protecting employees from both employers and unions, this is perhaps the most pro-union NLRB ever. Sort of hard for the Board to be impartial when most of the Members spent their careers advocating on behalf of unions, don’t ya think? As for the two “token” Republicans on the Board, their roles will be relegated to writing dissenting opinions.

In addition to the NLRB Board Members, President Obama also nominated Richard Griffin to serve as the Board’s General Counsel. Yep, the same Richard Griffin who was the General Counsel of the International Union of Operating Engineers and who was nominated as a Board Member just a few short months ago – before he was named as a defendant in a RICO lawsuit for allegedly giving the go-ahead to fire a member of his own union who was about to blow the whistle on a dues skimming operation. Did you follow all that? Well, as General Counsel, he now decides which cases the NLRB prosecutes, and he will help guide the NLRB’s interpretation of labor law. This is a powerful position – just ask his predecessor Leif Solomon who you can thank for the NLRB’s unrelenting prosecution of social media cases.

Here is what employers are likely to see from the new NLRB:

Quickie / Ambush Election Rules

I know, I’ve been harping on this one for a while. This rule was created in December 2011 but not implemented because of a technicality – supposedly the vote to adopt the rule was invalid. I anticipate the new Board to re-vote making sure that the re-vote is proper, and I expect the 3-2 Democratic majority to approve the rule.

Workplace Emails for Non-Job Related Activity

The NLRB under President Bush (staffed with three Republicans) ruled that companies can maintain a policy prohibiting employees from using company email systems for non-job related solicitation, including union organizing. If this is reversed, companies will be forced to allow employees to use company provided computers and Internet access to organize a union whose goals are oftentimes adverse to the company.

Weingarten Rights to Non-Represented Employees

Under President Clinton, the Board held that non-union employees could have someone accompany them during workplace investigations/questioning that could result in discipline. The Bush Board limited the right of accompaniment to only union members. I expect the Obama Board will expand the rule back to non-union employees.

Continued Focus on Non-Union Companies

The previous Obama NLRB aggressively focused on companies without unions by governing at-will statements, social media policies, confidentiality clauses, dress code policies, premises access policies, and disciplinary action. I expect the current Board to continue this practice – or even step up its aggressiveness.

The above expectations are more than guesses. They are rooted in history and are logical extensions of what the Obama Board has tried to accomplish since he was first elected to office. We are stuck with this NLRB until December 2014. Needless to say, the next year and a half will be interesting.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com