Get Ready for Union Worksite Soliciting

The National Labor Relations Board, which has leaned toward organized labor since President Obama took office two years ago, may soon ease restrictions against union worksite soliciting during organizing campaigns.  

That's the opinion of Jay Krupin, a veteran labor relations attorney with the Washington, DC-based firm EpsteinBeckerGreen. Krupin says it's not clear exactly what will emerge early next year as NLRB examines issues related to union worksite access for organizing purposes. Given the new composition of the four-member board—which includes Obama's recess appointees Craig Becker and Mark G. Pearce, and Clinton appointee and Chair Wilma B. Leibman—Krupin anticipates that unions will be happier with the results than will management.

"We have a three-to-one supermajority of pro-union members of the board. They are implementing the parts of the (Employee Free Choice Act) that they couldn't get through the legislative process. The pro-labor leaning members of the board are taking that agenda and running with it," he says.

Krupin says he expects NLRB will hear arguments from organized labor that the no solicitation policy violates the National Labor Relations Act because it precludes unions from equal access to workers considering organizing. "Right now on the employers' premises you only hear from one side. The issue is the employers have a 'captive audience.' Our argument has always been the unions can meet with the employees any place else in the world," he says.

Improving union access to the worksite would be disruptive, and create an unfair and coercive environment, Krupin says. "The union doesn't represent the employees until the employees say they do. This is like having an insurance agent coming into your house until you sign the policy. If you want to sign the policy you will find them," he says.

Krupin predicts that NLRB will examine the parameters of the so-called 24-hour rule, which prohibits management from holding mandatory mass meetings with employees within 24 hours of a union vote. "Unions won't be able to speak to employees whenever they want, but I suspect it is going to be more of an equal access question," he says. "If an employer engages at any time, not just within 24 hours, with mass meetings with more than one employee on the premises, then the union should have the same access. It will be more equal access, rather than total access."