The five-member National Labor Relations Board (NLRB) has the power to effect substantive changes in laws that cover non-union as well as union workplaces. Given the anticipated shifts toward union-friendly rulings identified by Board Chair Wilma Liebman in her dissents to previous Board rulings and in her Congressional testimony, employers who would like their workers to choose to remain non-union would be well advised to take legal and ethical actions NOW to mitigate the negative effects such rulings may have on them and their employees. Below are one preventive action and six contingent actions management can take in anticipation of these changes.

The most effective antidote to outside intervention is preventive action — i.e., make a conscious decision to place a high priority on your employees. Create an employee-centered workplace™, which I define as an environment in which every person, system, program, and process is focused on helping employees become fully successful. Since everyone wins when employees are fully successful, why would you NOT choose to make them a high priority?

Here are six legal and ethical contingent actions management can take to prepare for the effects of the anticipated NLRB rulings on the employer-employee relationship:

1. Monitor NLRB rulings and Executive Orders closely. Get expert help if necessary to identify the impact the changes they will have in your workplace. Be pro-active; don’t wait for the decisions to be handed down before you take action.

2. Do not discriminate against employees on the basis of union activity or membership – it is illegal to do so. Management can avoid engaging in illegal activity by applying workplace policies consistently and enforcing them rigorously.

3. Educate all levels of management about employer rights and responsibilities as well as about what constitutes legal and illegal behavior.

4. Hold managers strictly accountable for acting legally and ethically.

5. Educate employees NOW about management’s position on unionization in ways that they do not perceive as threatening or intimidating. Inform them of their right to join or refrain from joining a union. The timing for disseminating accurate and complete information to employees is important: “employer neutrality” clauses may prohibit such communication in the near future.

6. Become familiar with the previous NLRB rulings targeted for reversal and make relevant adjustments to organizational policies NOW.

The saying, “The best offense is a good defense” is good advice for both employers and employees. Taking the preventive action of making employees a high priority in the workplace will reap benefits for organizations in terms of higher productivity and profitability, and for employees in terms of fair treatment. Coincidentally it will decrease the likelihood that employees will see a need for union intervention. Management decisions and behaviors in the workplace will inform employees’ choices about union representation. What is your choice?

© 2009 Pat Lynch. All rights reserved.

It is safe to say that relatively few employers and even fewer employees can accurately identify the National Labor Relations Board (NLRB) and describe its role. Yet this five-member panel is about to transform the nature of the workplace. Here are seven things employers and employees need to know about the NLRB.

1. The NRLB consists of five people whose decisions have the effect of federal law.

The Board’s rulings come in the form of decisions about unfair labor practices filed by employers or by unions. Because the rulings involve interpretations of the National Labor Relations Act (NLRA), they do not need Congressional approval to become the law of the land. While the Board cannot change the provisions of the NLRA, it can change how the law is interpreted and administered. Its rulings may be challenged in federal appeals court.

2. Board decisions affect ALL covered employees, not just those who belong to unions.

With some exceptions (e.g., government workers, railway and airline workers) the NLRA covers unionized and non-unionized workplaces in the private and non-profit sectors with one or more employees. Thus Board rulings affect the rights of non-unionized employees and employers.

3. The Board is a highly politicized body.

Over the years the NLRB has become an increasingly politicized body whose members’ decisions reflect their political party affiliations. Rulings made by a Democrat majority typically favor unions, while those made by a Republican majority tend to favor management.

4. Once President Obama’s three Board nominees are confirmed by the Senate, the NRLB will have a Democrat majority.

The new Board Chair, Wilma Liebman, is a Democrat, as are two of the three individuals nominated by President Obama to join the Board. Ms. Liebman is on record (through her testimony before Congress as well as in her written dissents to previous Board rulings) as advocating significant changes that diminish current employer rights and increase unions’ rights in the workplace. (See specific examples in #7 below.)

5. The NLRB regularly reverses previous Board decisions.

Unlike courts of law, the Board does not treat previous decisions as precedent-setting. In fact, it reverses rulings of previous Boards with some regularity. Further, Board decisions are not subject to the debate, hearings, and media attention that accompany much federal legislation. NLRB decisions fly under most employers’ radar.

6. U.S. labor law changes with each new or reversed Board decision.

Because Board decisions have the effect of law, the law changes with each reversal. In addition, a decision in one case changes the law for ALL covered workplaces. Unless employers realize this fact and track NLRB decisions closely, they easily and unwittingly may violate federal law.

7. The new NLRB Chair has been very specific about what she wants the new Board to change.

Some of Board Chair Liebman’s desired changes include de-emphasizing employers’ rights such as free speech, establishment of work rules, and access to employees; providing enhanced rights for temporary and contingent workers; enabling supervisors to join unions; broadening the definition of “protected activity;” allowing unions electronic access to employees (e.g., via employers’ e-mail systems); and requiring employers to provide more extensive financial and operational information to unions.

The bottom line: you ignore NLRB rulings at your peril. While even some management attorneys acknowledge that Board decisions made recently, especially during the Bush years, went too far in favoring employers, statements by Chair Liebman indicate her intention to push the pendulum to the other extreme. Are you prepared for the upcoming wild ride?

© 2009 Pat Lynch. All rights reserved.

As I stated in a previous post, employees will become collateral damage in the labor-management battle playing out across the U.S. unless unions, management, and politicians take a sharp right from their current direction and start putting employees’ interests ahead of their own agendas.

Here are some concrete suggestions about what each “player” in the labor relations process can do to get back on track in achieving Congress’ original intent in passing the National Labor Relations Act, which was to create a balance of power between employers and employees.

Management:

1. Assess the four areas that influence employees’ perceptions about how they are treated on a daily basis and take immediate action on areas that need improvement.

2. Train all managers to act only in ways that are legal and ethical.

3. Provide employees with factual information about their rights under existing labor laws.

Employees:

1. Ask questions of employers and of union organizers. Get the facts about what each party realistically can and cannot do.

2. Learn employee rights under existing labor laws.

3. Be clear about the consequences of each alternative before making a choice – i.e., how will the workplace change, if at all, with and without union representation?

Unions:

1. Provide employees with realistic expectations about what can be done to improve their workplace – i.e., what their return on union dues will be.

2. Set and enforce high standards for organizers’ behavior.

3. Avoid setting unachievable expectations. Disillusioned workers make dissatisfied union members.

Politicians:

1. Make employees the priority instead of pay-back to management or unions for political contributions or other support.

2. Improve the labor relations process by making it truly balanced.

3. Pass legislation that is employee-centered – i.e., ensures procedural fairness and due process for all parties.

It’s not too late to avert the damage that will be done if management, unions, and politicians continue to put their own agendas ahead of employees’ interests. Absent a change in direction, however, employees will be the real losers in this battle.

© 2009 Pat Lynch. All rights reserved.

Whatever the outcome of the current desperate tug-of-war between unions and management, exemplified by the battle over passage of the proposed Employee Free Choice Act (EFCA), one thing seems clear: employees will become collateral damage. Here’s why: the on-going workplace warfare is not about making employees a priority; it’s about the relative power of labor and management in the United States.

By giving most employees the right to form and join unions, Congress added a third party to the labor relations process whose role is to help achieve a balance of power between employers and workers. More than 70 years later, that balance remains elusive for two primary reasons: (1) self-survival is the number one priority for unions and management, and (2) there is no shared vision of the workplace. Without a common goal, it is impossible for labor and management to work as a team.

Clearly the U.S. labor-management process is broken. The National Labor Relations Act is in need of substantive reform. However, the Employee Free Choice Act and piecemeal mechanisms, such as reversible Executive Orders and National Labor Relations Board rulings, and provisions like “employer neutrality” clauses inserted into prospective legislation, are not the way to ensure balance.

Congress has an opportunity to improve the law rather than merely fix it – i.e., to take it to a new, higher level at which the participants work collaboratively toward a common goal rather than retain existing dysfunctions. A common vision, such as ensuring that employees are fully successful, dramatically decreases the frequency of dysfunctional behavior and substantially increases the likelihood of reaching the goal.

Creating and implementing this common vision requires commitment and collaboration from all parties and from politicians. Employers must make a conscious decision about how high a priority they place on their employees, and ensure their actions support their choice. Workers must make an informed choice about the need for third party intervention by answering the question, “How well does my employer treat me on a day-to-day basis?” Unions must provide the necessary balance in workplaces where workers are a low priority. And politicians must take an employee-centered approach to legislation. In short, all parties must commit to making workers a high priority. Without a holistic, employee-centered approach to the workplace, the very people the law purports to protect instead will become collateral damage.

© 2009 Pat Lynch. All rights reserved.