Looking at the developments in the labor law field during 2014, a few stand out as worthy enough to find a place on a labor professional’s “to do” list for 2015. Here are the five that I would suggest should be on the list of every management representative:
- Prepare for the quickie election. The changes to the election procedures that the NLRB adopted at the end of last year will clearly shorten the time between petition filing and secret ballot election. Today, there is usually 35-42 days between those two events. Under the rule, the time could drop to as few as 14 days, but probably more likely around 21 days. If an employer is not ready for an election petition the moment it is filed, it will present significant tactical and strategic challenges for the employer. While there will be litigation over these changes, the NLRB has given no indication that it will delay the implementation of the rule pending the outcome of those lawsuits.
- Assess the impact of “micro-units” in your workforce. Have you read (or read about) the NLRB’s Specialty Healthcare, Macy’s, and Neiman Marcus decisions? If not, you are already behind on this issue. These decisions provide unions a tool to subdivide an employer’s workforce into smaller pieces and either (a) organize small pieces at a time; or (b) permit multiple unions to represent various parts of your workforce. Every employer should be looking at what impact this has on their workforce, and whether any proactive steps are available to respond.
- Review your handbook. Regular readers of this blog know that the NLRB has been on a rampage when it comes to rules that govern the conduct of employees. The NLRB has a keen interest in striking down rules that it believes, from a very employer unfriendly point of view, limit employee exercise of rights under the NLRA. Revisions to the handbook, or adopting a disclaimer, are possible approaches to compliance for employers to consider in 2015.
- Prepare for the NLRB’s new deferral standard. In Babcock & Wilcox Construction Co., Inc., 361 N.L.R.B. No. 132 (Dec. 15, 2014) (pdf), the NLRB altered the circumstances under which it would defer to a labor arbitrator’s resolution of a statutory issue. Specifically, it held that it would only defer on an issue under Section 8(a)(1) or (3) of the NLRA if the party advocating deferral (usually the employer) could prove that the arbitrator was (a) explicitly authorized to decide the unfair labor practice issue; (b) the arbitrator was presented with and considered the statutory issue; and (c) NLRB law would reasonably permit the award. Clearly, this new approach will require employers with union-represented workforces in 2015 to reconsider not only their labor arbitration strategies in individual cases, but perhaps also the language of their union contracts themselves.
- Watch for the Supreme Court’s decision in M&G Polymers. This is also a development for employers with existing unionized workforces, especially those for whom retiree health care benefits are a significant bargaining issue. The Court’s decision will, hopefully, provide guidance on the language that must be used and where that language must appear to establish a “vested,” i.e., unchangeable, right to receive health care benefits into retirement. These issues can have significant cost implications for employers with large numbers of retirees.
So, there you have it. Given the NLRB’s activism, the list could be easily be longer. But, if you are looking for a few changes where you can have the greatest impact, these are the places you should start.