Since March of 2020 American businesses have been challenged with unprecedented and unique obstacles. A fairly robust economic engine shut down overnight, shelves were bare and supply chains were interrupted at an alarming rate and government intervention and oversight not seen outside of wartime became the norm. The pandemic took the world on a roller coaster ride of starts and stops and social unrest and racial inequities rocked the fabric of the American Republic. In the midst of these uncertainties, employers who were able to operate were working employees who came to work unusually long hours, other employers were slow to return to a pre-March 2020 structure, and many individuals themselves were slow to return to work or simply decided to do something else. As the world began to recover, war erupted in Europe, further complicating an already precarious situation. All of this was set against the backdrop of the 2020 national election.
With so much attention focused on these major upheavals and challenges, the new administration has been working to implement its agenda often out of the eye of the press and with a focus on the business community. This agenda, particularly in the area of labor relations, presents a danger for employers that has not been at the forefront for many years as the federal government works to change the National Labor Relations Act, the law that governs the relationships between employers, employees and labor unions. Since the post-World War II era, employers, employees and labor unions have generally operated under a law that allows employers to provide facts, opinions and examples of the realities of unions, collective bargaining and the relationships between these respective parties. The current administration disagrees with the law as it is now written and is taking steps through proposed legislation (the “Pro-Act”) as well as administratively through directives and opinions from the National Labor Relations Board’s General Counsel, and, expected soon, decisions from the Board interpreting the law in new and different ways. What are some of these impending changes?
In the proposed legislation H.R. 842, the amendments revise the definitions of employees, supervisor and employer to broaden the scope of individuals covered by the Act; allow secondary strikes (strikes initiated by employees represented by a different union); and prohibit employers from bringing claims against those unions engaged in these kinds of secondary strikes. The bill has language that undercuts state right to work laws, language that makes it an unfair labor practice to hold meetings with employees to talk about unions, permanently replace an economic striker, expands so called “whistleblower” protections to management employees, and allows employees to vote through electronic means rather than in person among its changes. The House approved H.R 842 on March 21, 2021.
The agency’s current General Counsel has issued numerous memoranda on such topics as attendance at mandatory company meetings, expanded use of injunctions against companies, expanding remedies available to employees, giving priority to mail ballot elections, and expanded enforcement of allegations of alleged protected concerted activities among other efforts on her view of the statute.
In addition, there are a number of administrative law judge decisions pending before the National Labor Relations Board that will likely rework definitions of what is a protected concerted activity, what is a community of interest for the size of a unit appropriate for bargaining (micro units) and how injunctions will work, all to the detriment of business.
These are all part of the administration’s belief that the only good jobs are union jobs. American business knows that is not the case. American business women and men across the United States know the power of innovation and imagination can create a viable business model, that they can pay great wages and benefits to their team members and can pivot and adjust as market conditions change. Businesses were established, grew and became contributors to and for their local communities without any union. These businesses need only look to formally union controlled towns like Youngstown, Ohio, Scranton/Bethlehem, Pennsylvania, and Gary, Indiana to see that there are no union jobs in those areas as the union businesses shuttered their doors. Union jobs are not the only good jobs, but if the administration has its way, more businesses will find themselves having to deal with unions with little or no ability to inform or educate their team members so that an informed decision can be made on the issue of union representation.
With the landscape changing in the post-pandemic world and positions being advanced by the administration in the area of labor relations, now is not the time to be silent and think it will not happen to you or in your area. Businesses need to be wary as the danger lurks. Those wishing to stay union free should let their voices be heard in Washington, DC, focus on training management on the basics of labor relations and supervisors’ role in lawfully communicating the company message, analyze the workforce to gauge morale and identify possible micro-units that could be carved out in an organizing campaign, review employee handbooks and HR policies to identify anything likely to be challenged by the NLRB for violating employee rights, and have a pre-set team appointed and trained to be able to quickly communicate with team members at the first sign of union activity at your place of business. Taking proactive steps now may well help avoid the challenge of having to deal with a unionized workforce.
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