HR Leadership Column

Wariness of NLRB Increases

All HR executives should be concerned about recent developments at the National Labor Relations Board. Where once you may have just skimmed the news about the agency, you may now want to pay closer attention.

Monday, January 23, 2012
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When I was growing up, my father worked as a manager at a large, unionized, company. My mother, who was a school nurse, was a member of the teachers' union. My mother never went out on strike, but there were some close calls. My father was less lucky, and had to work many extra hours on the occasions when the union went on strike.

As you can imagine, I heard both sides of labor/management debates as I grew up.

But I have to admit, the topic bores me: I'd much rather learn about increasing employee engagement or useful HR analytics than learn about the actions of the National Labor Relations Board. I mean, after all, only about 12 percent of the workforce is unionized, and only about half of those members work in the private sector.

So, like many HR executives, I only casually monitor the National Labor Relations Board's activities.

And as for those employers that are unionized? How many of us have said -- or heard other HR executives say -- "Any company that has a union in this day and age has done something to deserve it!"

The purpose of this column is to say: Don't be so sure.

Recent developments at the NLRB should give all HR executives concern. Where once you may have just skimmed the news about the agency, you may now want to pay closer attention.

Consider what's happened in just the past few months.

First, the NLRB issued a decision last fall that changed the traditional test used to determine an appropriate unit for bargaining. The NLRB ruled that an employer has the burden of proving that workers share an "overwhelming community of interest" when they seek to include otherwise excluded employees from a proposed bargaining unit.

The decision makes the possibility of smaller, multiple bargaining units much more likely, which facilitates union-organizing efforts.

Second, in December, the Board approved changes in the rules governing union-election procedures. The new rules -- which will be effective April 30, pending a lawsuit filed by the U.S. Chamber of Commerce, among others -- are designed to speed up union elections, which many believe will also make union organizing easier.

The new rules will streamline procedures in cases where the parties can't agree on issues such as the eligibility of some employees to participate in the election.

Currently, disagreements between unions and employers about the eligibility of certain employees and setting an election schedule are reviewed and arbitrated in hearings held in the NLRB regional offices. After hearings, NLRB regional directors issue a decision on the case and set the election date.

Under the new rules, which the business community has described as "ambush" election rules, regional hearings will be much more limited, and will only consider issues relevant to the question of whether an election should be held.

These new elections rules will conveniently become effective at the same time the NLRB's new notice-posting requirements, published last fall, become effective. While they're still being challenged in court, the new rules require employers to post notices (PDF) that explain employee's rights under the NLRA.

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Fourth, in early January, the NLRB issued a decision, finding that it's a violation of federal labor law for employers to require employees to sign mandatory arbitration agreements that don't allow for employees to bring class or collective claims before an arbitrator or court. The arbitration agreement at issue prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.

The Board found that the agreement unlawfully barred employees from engaging in "concerted activity," which is protected by the NLRA.

Finally, in early January, President Obama issued recess appointments to fill out the five-member NLRB, which, because of term expirations, had dropped to only two members. Presidential elections have consequences, and while there's a legal question on whether the President was constitutionally permitted to make the appointment (was the Senate really in recess?), a newly constituted, labor-leaning Board is in place.

Taken all together -- Board decisions, regulatory changes, presidential appointments -- these developments point towards a stepped-up pace in making it easier for unions to organize workplaces.

While lawsuits and legislative battles may slow down the pace, it's unlikely to be stopped, and HR executives who have skimmed news about the NLRB in the past need to pay closer attention, and focus on educating managers.

You might start by asking your own HR team such simple questions as, "What's 'concerted activity?' " and "Why should we care?" 

Susan R. Meisinger, former president and CEO of the Society for Human Resource Management, is an author, speaker and consultant on human resource management. She is on the board of directors of the National Academy of Human Resources.

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