National Clothesline
National Clothesline
Preparing for four more years
The President was re-elected in November, and the Democrats retained control of the Senate. As a result, employers can expect the National Labor Relations Board to continue its quest to remake the workplace.
As reported in my last column, the NLRB is declaring unlawful traditional handbook language dealing with courtesy among employees or the need for employees not to disparage their employers publicly.
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Because the President’s victory was the result, in part, of union support, he will continue to grant favors to organized labor, and a seat on the NLRB is a very large favor.
Labor unions, not surprisingly, dislike non-union employers, and if they cannot unionize those companies, they do what they can to punish those employers, hoping many times to put them out of business.
The NLRB, by getting into subject areas involving non-union employers, can do just that.
So what should an employer do?
For the time being, we are suggesting to our clients that they do nothing to change their handbook policies (unless, of course, they were illegal under prior law), but instead add a disclaimer.
The language of that disclaimer can read somewhat like this:
The National Labor Relations Act
“Nothing contained in this handbook limits or restricts any employee conduct protected by the National Labor Relations Act. Specifically, section 7 of the Act provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].”
We are also advising our clients to educate their supervisors, and in some cases their employees, on what unionization means and what it doesn’t mean.
I understand that some employers are not against unions, especially if they grew up in a household full of family union members. That’s fine, but if you are non-union and want to remain that way, you need to take steps to make sure supervisors and employees understand the law.
The first step in remaining non-union, however, is to be a good employer. That means paying employees a fair wage, treating them with dignity, communicating with them, and solving problems before they become chronic.
Disciplining and removing poor employees is also a good way to reinforce to the good employees that their efforts are worth it.
Employees seek unionization in many instances because they feel neglected by their employer, or the employer has engaged in some type of behavior that generates hostility. It takes work not to be a bad employer and even more work to be a good one.
The next step is to talk to supervisors and employees about unions, especially if other employers in the area are being organized.
If there is story in the newspaper about a strike, you might use that as an opportunity to talk about why you are not in favor of unionization, and why the employee should feel the same way.
Supervisors should also know how to answer questions about unionization because, under the National Labor Relations Act, you are responsible for what they say and do to employees.
To see if your supervisors are properly prepared, determine whether they could answer the following questions:
What is the company’s position on unionization?
Why?
I’ve been asked by the SEIU to sign a union card. Should I?
Do I automatically get union scale and benefits if the company is unionized?
Is there anything good about having a union?
If they cannot, they need some training.
As I said earlier, some companies are more than comfortable with having a union. For one thing, it makes it easier when employees ask for special favors to say: “Sorry, I can’t do that under the union contract.”
If you are not in that mindset, I recommend you ask yourself some of the questions above to see if you know the answers.
In any event, it is a good time to review your employee handbook, especially in light of the NLRB cases that have come and will continue to come in the next four years. Fasten your seatbelt. It could be a bumpy ride.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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