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  • September 6, 2017

Keep Your Eyes Open, Even If You Don’t Think You Need To

Workers at Nissan’s factory in Canton, Mississippi, have strongly rejected representation by the United Auto Workers — 63% to 37% — despite a multi-year organizing campaign. Nissan spent enormous resources in a counter-campaign that included a local advertising blitz consisting of television commercial spots, newspaper and radio advertisements, and Spotify ads. Nissan’s expenditure to stay union-free in the traditionally union-free South provides a valuable lesson to employers: Do not be complacent about the prospect of unionization, regardless of location and organizing history.

More Realistic NLRB Approach to Employer Rules Ahead

Now that Republican Marvin Kaplan has been sworn in as a Member of the National Labor Relations Board and Republican William Emanuel is expected to be confirmed soon by the Senate, giving the Board a pro-business majority, the stage is set for changes at the NLRB. Topping the areas for change is the NLRB’s analysis of employer rules and policies. According to former-Board member Brian Hayes, as reported in the Daily Labor Report, it “certainly is possible” that in the 11 weeks from September to the end of Chairman Philip Miscimarra’s term in November, the NLRB could issue a decision making its test on employment rules and policies more employer-friendly. While the Board may become more employer-friendly, the term of pro-labor NLRB General Counsel Richard Griffin, who decides what cases to prosecute, does not expire until November 4.

Private Unions Count, Too

Most union organizing is conducted by international labor organizations, such as the Teamsters or Service Employees. But federal labor law also protects the right of employees to form their own unions, so-called private unions, without the involvement of an outside labor organization. Such unions often are fueled by strong, local worksite issues, championed by employee-leaders, and aided by the failure of local management to recognize or address those issues. As local union organizing does not fit the profile of traditional organizing, some typical early signs of union organizing (e.g., rumors of meetings or distribution of flyers and authorization cards) may not be present. Rather, private union organizing is organic and harder to detect as employees simply talk with each other, and the workplace appears “status quo.” This underscores how critical it is for employers to have a keen sense of the rhythm of their workplaces to ensure they recognize the subtle early signs of private union organizing.

Strength in Numbers: Unions Banding Together to Organize

AFL-CIO President Richard Trumka says his union is working on a new organizing technique, according to the Daily Labor Report. The new strategy involves collaboration among unions to organize by “sector” (e.g., building trades, transportation, public sector, and professional employees), rather than individual union pursuit of representation rights at a single employer. According to Trumka, labor’s collective effort is necessary to counter deep-pocket supporters of conservative causes, such as right-to-work legislation. However, some are skeptical about the new strategy, saying unions’ problems actually stem from their poor relationships with rank-and-file members and questioning whether unions can work together.

Please contact a Jackson Lewis attorney with any questions about these and other workplace issues.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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