On Day One of SuperConference, the panel titled “The Election’s Impact on the National Labor Relations Board and Unions” discussed recent NLRB rulings, strategies for dealing with unions and the current in-flux state of the NLRB (which you can read more about in InsideCounsel’s upcoming June issue).

Charles Caulkins and Stephen Mitchell of Fisher & Phillips, a specialty law firm that represents employers in labor issues, led a talk on today’s changing employment environment. In 2012, 11.8 percent of the workforce belonged to a union, compared with 20.1 percent in 1983. This declining union membership combined with fewer traditional elections means that “there’s a real question of what the future is for labor unions,” Caulkins says.

The panelists said that unions are starting to feel that they must fight to survive and are trying tactics such as equating organizing rights with civil rights and picketing companies that don’t agree to their terms.

“What they’re really trying to do is embarrass companies,” Mitchell says. “They just want to make it so difficult for you to oppose them that you just give up.”

Mitchell and Caulkins recommended that employers have a plan in place before a union election ever arises, so they don’t have to waste time figuring out what they’re going to say to employees, where they should meet and other logistical details.

There was much discussion of the recent slew of employee-friendly NLRB decisions on matters such as social media, confidentiality, off-duty access to workplaces and more. But many of these decisions have been thrown into question with the D.C. Circuit’s recent ruling in Noel Canning v. NLRB that President Barack Obama’s recess appointments to the board were unconstitutional.

“It’s a mess right now, is what we have,” Mitchell says. “But for employers a mess is not necessarily a bad thing, if you’ve got a very pro-labor board,” which the current NLRB is.


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Lawmakers tackle guest worker programs in House immigration bill

Labor: Handling requests for information in collective bargaining

Labor: The NLRB will not be ignored