United States: The Unintended Consequence Of Biased Regulators – Labor Board’s Frenzied Drive To Help Unions Organize Could Result

The ObamaBoard's hostility toward union-free employers is palpable. If employers who wish to remain union-free do what the Board is requiring them to do, however, fewer, rather than more, employees will choose to be represented by a union.

The final pieces to the ObamaBoard's strategy to pump up union membership are falling in place. Recently, the Board has

  • authorized micro units so that groups as small as a single classification can have their own unions and demand their own contract negotiations;
  • has made it impossible for employers to enforce reasonable rules of conduct without facing unfair labor practice charges;
  • made it unlawful to terminate toxic employees because they "may" engage in union activity;
  • made it unlawful for employers to prohibit employee use of employer property – emails – for union organizing;
  • has changed the election rules that now elections are possible in less than two weeks after a petition is filed; and
  • effectively denied employers due process by preventing them from resolving issues such as voter eligibility and appropriateness of a unit for representation until after an election has been conducted.

The remaining pieces of this disgraceful mosaic are likely to come soon:

  • elimination of the personal and charitable exceptions to no-solicitation/no-distribution rules, and
  • making host companies for contingent workers "employers" of the workers for purposes of union organizing.

Thanks to the ObamaBoard, it has become profoundly more difficult for employers to resist the unionization of their workforce and going union immeasurably more dangerous in light of the paralysis that can come from having to deal with multiple unions representing multiple bargaining units in a single location.

Further, certainty about the law – something critically needed by businesses to operate successfully – also has slipped into a slough of constant litigation. The decisions by this Board have been confused, intellectually dishonest, blind to reality and, putting it simply, wrong.

The ObamaBoard's zeal to help unions acquire more members at more companies has done our country and our economy a great disservice. If employers do what they are now being compelled to do, the ObamaBoard will also have done a disservice to organized labor.

History demonstrates that the more employees know about unions and what they can and cannot do, the less likely it is that they will want a union to represent them. As a result of the ObamaBoard's decisions and authorization of organizing by ambush, employers are now obligated to be in a constant state of counter campaigning. If a small unit of employees can be "signed up" at a bar in a single evening of wishful thinking and unrebutted half-truths and an election can be scheduled within two weeks after a petition is filed, employers must educate their employees concerning unions or risk being organized by accident. Union-free workplaces are being forced to become in a state of constant counter-campaigning. It may be subtle and low key, but it must exist. Otherwise, employees, out of ignorance, initiate a course of action that, because an employer will not have enough time to respond in a measured and effective way, will result in unionization.

There are numerous things that employers MUST do if they are serious about remaining union free. I have detailed these in my blog of November 25. Check it out.

The stakes are high but the way to stay union-free is mapped and clear.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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