By Jonathan K. Driggs, Attorney at Law

Most Utah employers don’t seem to worry too much about unionizing activity.  For various reasons, union membership makes up only small percentage of the workforce in Utah.  Nationwide, union membership fell to an all-time low of 11.1 percent of employees (down from 20.1% in 1983 per the Bureau of Labor Statistics).

The steady decline in union membership throughout the country has not gone unnoticed by the National Labor Relations Board (NLRB), which has authority to enforce the National Labor Relations Act (NLRA).  The NLRA is our main federal law that protects workers’ rights to organize.  President Obama, who was elected with broad support from organized labor, has filled NLRB’s five member board with a majority of ardent union supporters.  As a result, the NLRB has taken bold and controversial steps in an attempt to turn around the nationwide decline in union membership.  Many in the employer community, however, argue that the NLRB has greatly overstepped its authority and created a process that is inherently unfair to employers and employees who do not want to join a labor union.

So, what’s happened?  On December 12, 2014, the NLRB issued a new “Final Rule” reinterpreting the union certification process established by the NLRA.  In a nutshell, the NLRB is intentionally speeding up the election process (the new rule is called the “quickie election rule” by the employer community).  While the NLRB claims to be making the changes in order to “modernize” the election process, it’s painfully obvious that the NLRB’s real intent is to make the process so quick that employers don’t have time to put up a meaningful defense to the unionizing challenge and thus lose by default.

The NLRB is being quite deliberate. In light of the decline in union membership throughout the country, the NLRB feels justified in taking an “ends justifies the means” approach.

In their new rule, the NLRB has imposed the following changes to the union certification process which will become effective on April 14, 2015:

Further, in a recent decision, the NLRB reversed its own precedent and held that unions (be sure to sit down for this one) have the right to use company owned email systems for disseminating pro-union information to employees.  Wow, that’s a stunner!  This decision raises a whole host of troubling issues, including ignoring basic property rights that employers hold over their own electronic communication systems.

As you can imagine, there has been a strong response from the employer community.  The Society for Human Resource Management (SHRM), along with other groups, have filed suit against the NLRB for overstepping its authority in interpreting the NLRA.   This is only the third time in its history that SHRM has filed suit challenging the issuance of new regulations.

So, while we keep an eye on the legal challenges to the NLRB’s new rule, what should employers do (especially those with workforces that are more vulnerable to unionization)?  It really boils down to two things: 1) continue treating your employees well so they are not inclined to respond favorably to being unionized, and 2) if you are not already doing so, get your union prevention plans firmly in place and ready to go at a moment’s notice.  If the NLRB’s new rule stands, we will see an increase in unionizing activity, and employers could find themselves unionized before they know what hit them.  Smart employers will get themselves ready now.

This article should not be construed as legal advice.  Copyright ©2015 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.  Jonathan K. Driggs is an employment law attorney with over 22 years of experience, including 3 years with the Utah Labor Commission.  www.jkdlawpc.com

Jonathan’s popular “Employment Law for Managers Seminar” is being offered by Salt Lake Community College’s “Custom Fit Program” at a significantly discounted rate for qualifying “for-profit” employers (“Custom Fit” is run by the state of Utah and uses state funds to offset the cost of training programs for employers).  The seminar is on Wednesday, March 11, 2015, at the SLCC Miller Campus in Sandy.  For details and registration contact: Debbie Patten at 801-957-5244.

For general information about the contents of Jonathan’s Employment Law for Managers Seminar, see: http://www.jkdlawpc.com/seminars/employment-law-for-managers-seminar/

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