Employers must remain watchful for increased union organizing at their workplaces. Those that dismiss the possibility that their employees would consider unionizing are often left disappointed and unionized when last minute anti-union campaigns in response to “surprise” representation petitions are “too little, too late.” Recent actions by the National Labor Relations Board—examples are below– highlight the need to prepare now, well before a union targets an employer.

  • The Board in Specialty Healthcare “opens the door” to smaller, more narrowly defined bargaining units that, being smaller, take fewer votes to become unionized. Under the Specialty Healthcare standard, an employer that argues that a proposed unit inappropriately excludes certain employees must prove that the excluded employees share “an overwhelming community of interests” with employees in the proposed unit.
  • A federal district court voided the Board’s “quickie election” rules because only two of the then three-member board participated in the adoption of the rules. (Click here for our outline of the proposed rules and how much they would shorten an employer’s time to campaign.)  The district court concluded that the Board lacked the necessary quorum to engage in rulemaking. But an appellate court could reverse this decision, or the Board could adopt the rules with a quorum vote.   If these rules go into effect,  the markedly shorter filing-to-election time cut would leave employers with hardly any “response” time “make their case”  to employees on unionization and why they are "better off” to remain union-free.
  • The Board is to issue a ruling shortly on whether employers can lawfully prohibit their employees and unions from using an employer’s e-mail and Intranet systems to distribute union campaign materials.

Every employer, with the assistance of experienced labor/employment counsel, needs to audit its vulnerability to unionization and train and otherwise sensitize its supervisors and other management staff NOW on “what it takes” to keep employees from feeling a need for a union. Reed Smith offers this type of assistance.


Reed Smith’s Labor & Employment Group will be conducting a series of CLE Programs entitled “Employment Law 2013 – Reed Smith Boot Camp” in locations across the country. Kicking off “Boot Camp” will be an event in our Philadelphia Office on January 31, 2013. If you would like to attend, click here and indicate your location.