— By Chako Perez and Francisco Aguayo, labor relations and employment law experts from Alaniz & Schraeder L.L.P

With more than $400 million dollars in political donations over the past four years, unions now have a National Labor Relations Board (NLRB) that has been busy passing union-friendly rules. While in April, federal courts handed employers a big win in delaying both rules, the story is not over as the NLRB is appealing the judge’s decision so that it can again proceed with both rules.

New Rules Sought To Add to Uneven Playing Field

One such rule would have created “ambush elections.” In order to organize a workplace, unions must be “recognized” by the employer. Because most companies refuse to accept a union voluntarily, organizing campaigns typically result in a secret ballot election, where employees choose to accept or reject a union.

In order to help guarantee a win, union organizers must campaign beforehand to secure employee majority support. Sometimes this silent campaign of employee meetings and solicitation occurs up to a year before the employer even knows the union is present. As a safeguard against this disadvantage, NLRB election rules allow for a period of time for the company to provide employees with information about union membership that could sway their vote. With the ambush election rules, an employer may have had only 10 days to counter those 12 months of union propaganda.

Similarly, another NLRB rule would have required most companies to hang a pro-union poster in the workplace. The aim was obvious in enticing employees to organize and providing them with the information to file a complaint with the NLRB.

As the NLRB expands its list of labor violations, which have increased to the point that even arbitration agreements and “at-will employment” disclaimers in handbooks are becoming a target, it is clear that the goal is to increase union activity and company penalties across the board.

Car Rental Decision Puts Union in the Driver’s Seat

While celebrating the temporary wins on the poster and election rules, all industries are feeling the ramifications of the NLRB’s August 2011 Specialty Healthcare decision. In reversing more than 20 years of law, the NLRB handed unions the ability to “cherry-pick” departments with the most supporters, giving them a greater chance of success at the eventual election. Though the Specialty Healthcare case dealt with nursing assistants, the fear was that the decision would be utilized against all companies.

For the auto rental industry that fear was realized when the Teamsters leveraged the new decision to obtain its preferred unit of only 31 rental service agents at a Denver car rental agency three months later. As larger units present better odds of winning an employee majority at the election, the company sought a wall-to-wall bargaining unit of all 100+ hourly employees.

The case was eventually appealed to the full NLRB, which did what it has done with almost every such case since Specialty Healthcare, and it sided with the union. The NLRB overruled the company’s evidence that other employees had similar work and pay conditions and therefore, the only fair employee unit was one that included all hourly employees. Instead, the NLRB pronounced that the group the union seeks to organize does not have to be the best unit, it only needs to be appropriate.

In determining that the employer failed the new high burden, the NLRB found that because rental service agents and their leads were organized in separate departments, work at sales counters away from other employees, have distinct job duties, different training and pay structures (e.g. quotas, incentives, etc.), they constituted an appropriate bargaining unit.

These new Specialty Healthcare decisions force companies to look closer at their operations since any department of disgruntled employees — no matter how small — can now be leveraged by a union as an entry point to the entire workforce. The decision has since been extensively exploited to such an absurdity that in a current campaign in a New York retail store, the union is seeking to differentiate the working conditions of retail employees in a shoe department to exclude other department workers to gain the upper hand at the election voting booth.

Preventive Maintenance

A stacked pro-union NLRB and ever-increasing rules are changing the conditions that employers must navigate. To further complicate the path for employers, the recent resignation of Board Member Terrence Flynn amidst allegations he provided confidential information to GOP colleagues, leaves a 3-1 union-backed majority on the NLRB. As a result, even more union-friendly changes to existing law can be expected.

Yet, union victories are never certain. Proactive strategies like opening greater lines of communication with employees to provide information on unions can be significant.

With the increased scrutiny on employer policies and practices, all employers — unionized or not — should be vigilant of the shifting landscape and enact strategies such as increased supervisor training and evaluation of company policies for compliance with new NLRB rulings. Any proactive step now can make the difference in avoiding the NLRB’s new pro-union push.

(Right) Chako Perez is a Board Certified Labor & Employment attorney at Alaniz & Schraeder L.L.P. He specializes in helping businesses of all sizes in issues ranging from union-organizing and unfair labor practice charges to representing employers in the litigation of wage and hour, discrimination, retaliation and disability claims.

(Left) Francisco Aguayo is a Labor & Employment associate at Alaniz & Schraeder L.L.P. and represents employers in a wide range of labor relations and employment law matters, including claims of discrimination, retaliation, harassment and wrongful discharge.