Employers Beware – The Rules are Changing

By: Attorneys Dean R. Dietrich and Nathan K. Miller

Over the past several months, the National Labor Relations Board has been issuing decisions that significantly change the landscape of the employer-employee relationship and returns the law to a time when employee rights ruled. While these changes are subtle, employers may be caught off-guard if they don’t keep track of these changes and seek proper advice.

The changes have occurred in three different ways, each of which impacts the employer-employee relationship. The first, and probably the most significant, change is a modification of the standard that will be used by the NLRB when determining whether a company policy (e.g., a policy in the Employee Handbook) violates the employee’s rights under the National Labor Relations Act.

Under the new standard, the NLRB will first determine whether a particular employer policy (such as speaking about a company’s business activities) violates the employee’s rights under the NLRA and then determine whether the company has shown that the protections sought by the company policy are critical to the company’s business. This change applies to all employer policies, whether the company has a union representing its employees or not.

The other two changes involve union election matters. A recent decision by the NLRB reversed the election policy adopted by the NLRB several years ago and now provides for a very quick election process with little time for a company to conduct a campaign to educate its employees about the election process and the negative consequences of a union representing its employees. The “quickie election” process will mean that employers will have little opportunity to challenge who would be eligible to vote in a union election or educate employees about the consequences of union representation.

The second change to election matters is based upon a recent NLRB decision which held that a company was required to file a petition for a union election if a union asks the company to voluntarily recognize the union and commence labor negotiations. Normally, the company would simply reject the request for voluntary recognition and place the burden on the union to file an election petition. This new decision suggests a company cannot reject the voluntary recognition, but rather must file an employer-directed union election petition if it does not believe that the union represents a majority of the company employees.

While these decisions may seem relatively minor, they can have large consequences for employers. Employers must be aware of these changes and adjust their human resource policies to avoid an adverse decision from the NLRB.

Please don’t hesitate to call your labor counsel, or call us at (715) 839-7786.