NLRB Decisions and Their Effects on Communication Strategies

The National Labor Relations Board (NLRB) recently overturned decades of precedent with decisions that can have wide-ranging impacts. Because these decisions are changing the parameters of union organizing, as well as how a misstep in engaging with employees resulting in an Unfair Labor Practice (ULP) could result in the NLRB issuing a bargaining order without an election, employers must stay informed and adjust their efforts accordingly. This is especially important for communications teams who may not stay as current on labor relations do’s and don’ts.

Below are detailed explanations of recent NLRB decisions, as well as actionable steps communications teams can take to help manage organizational communications amid these changes – without running afoul of the NLRB rules. 

A New Framework for Union Representation Proceedings 

First and foremost, it’s crucial to have an early warning system in place to get ahead of potential problems. At IRI, we recommend taking a proactive approach by using Digital Media Intelligence (DMI) to stay informed. Take action by compiling a team dedicated to following NLRB, union, and other online labor mentions relevant to your organization − across the web and all major social media platforms. And if you already have a DMI strategy in place, make sure all appropriate topics are reviewed. Additionally, along with internal efforts, it’s equally important to leverage DMI to understand the external public discourse regarding labor issues in your region.

The NLRB recently overturned decades of federal labor law precedent with its decision in Cemex Construction Materials Pacific, Inc., which announced a dramatic new framework for the union representation process, effective immediately, and in some cases retroactively. The process now in effect puts the onus on the employer to challenge the union’s claim of majority status by filing its own request for an election to decide whether its employees want to unionize. Because of this, employers now have three options:

  • Recognize the union and begin the bargaining process
  • File within two weeks a petition for an election
  • Ignore the union demand and likely receive a bargaining order without a secret ballot election

Additionally, with this new ruling, an employer who files for an election and then commits any ULP, which could lead to overturning the result of an election—no matter how trivial—could find the petition dismissed and receive an order from the NLRB that the employer recognize and bargain with the union without a secret ballot election.

Employers are almost always accused of ULPs during union election campaigns as there is no threshold the union needs to meet to file a ULP. What’s more, ULPs against employers are likely to increase as a result of the Stericycle decision outlined below. Because of this, it’s now more important than ever to train all supervisors on how to engage with employees on the topic of unionization.

Assessing Lawfulness of Work Rules

In the case of Stericycle Inc., the NLRB adopted a new standard for how the NLRB will evaluate workplace rules and policies that are challenged on the grounds that they interfere with or restrict employees’ rights to engage in protected concerted activity.

It’s important to note that an employer policy or rule is presumed to be unlawful if an employee could reasonably interpret it to have a coercive meaning that in any way limits their protected right to engage in concerted activity. Additionally, employers can only issue workplace rules that are tailored as narrowly as possible to “advance legitimate and substantial business interests” and minimize the risks of interfering with workers’ rights to act collectively.

Paired with the NLRB decision in Cemex, the Stericycle decision is a critical call to action for corporate communications teams to partner with Human Resources teams to immediately review all handbooks, policies, and work rules, lest their employer receive a union petition, an unforced error ULP from an out-of-date handbook, and ultimately a bargaining order. Communications teams should work with HR and legal counsel to review in particular confidentiality rules (both with fellow employees and outsiders), social media policies, and disciplinary rules and policies.

The Return to “Quickie” Union Elections

The NLRB also recently changed the NLRB’s election process and reinstated expedited or “quickie” elections, which will significantly shorten the timeline for union elections and adds new requirements and restrictions for employers. Unlike Cemex and Stericycle, which took effect immediately, this rule will not take effect until December 26, 2023.

The cumulative effects of this new rule will be to speed up elections, while reducing employers’ abilities to educate their employees on the effects of potential union representation. Combined with the Cemex decision, employers will have far less time – and fewer avenues – to contest union election campaigns, which is why it’s important to be proactive now.

Communications teams must act now to not only create a union campaign playbook but also begin educating supervisors and employees of the company’s position on unions – and why a union isn’t necessary. Employers who wait until a petition is filed to begin their outreach may only have 10 to 20 days total between petition and election, significantly decreasing their chances of educating employees and telling their story. Not to mention, a misstep from a well-meaning supervisor who has not been fully trained on how to talk to employees about unionization could now result in a ULP and, ultimately, a bargaining order.

Long-Term Strategies for Consideration 

It’s more important than ever for organizations to be proactive in their efforts to engage, inform, and listen to employees to avoid union interference while staying within NLRB rules. As strategic communicators, listeners, and partners, communications team members will play a vital role in these efforts and must understand how these laws affect employee communication – and know how to plan for and react to any subsequent activity.

IRI Consultants has an experienced multi-disciplinary team at the ready to help you create a customized labor communications solution, but if you’re just looking to get started, here are several tried and true strategies.

  • Conduct employee opinion surveys twice a year along with pulse surveys throughout the year to be aware of low employee satisfaction areas/locations.
  • Up skill corporate communication staff on how to effectively and legally communicate within the nuances of labor relation laws.
  • Develop a readiness response team who can support local management and respond quickly when early warning signs are reported.
  • Keep management labor skills sharp with regular updates (at least quarterly) on the current labor and NLRB environment.

Remember: it’s never too early to act. In fact, it will save you time, money, and energy in the long run, all while protecting your organization and keeping the communication lines open with your employees.

At IRI, we help organizations navigate workplace challenges, improve employee engagement and productivity, manage labor relations, and implement effective communication strategies to achieve their business and advocacy goals. We believe every business is different, and each requires its own holistic and customized approach to communications. Whether you need an internal communications assessment, guidance in developing your internal communications strategy or social media strategy, digital media intelligence, crisis communications services, media relations, or media training, we have expert communications consultants who can quickly provide a specialized solution. Contact us today to discuss the next steps, give us a call at (313) 965-0350