When President Obama took office, the NLRB, typically comprised of five members, was operating with only two members–one Democrat and one Republican. Organized labor got a major boost in March of this year, however, when President Obama appointed two new members, including one individual who was met with great resistance in the Senate because of his philosophy on federal labor law. The NLRB now has a Democratic majority for more union-friendly positions in pending and future cases.Union leaders have become significantly more aggressive in their attempts to organize workers over the past few years. Such efforts have proven successful. According to a recent report, “[u]nions won 68.5 percent of representation elections conducted by the National Labor Relations Board (NLRB) in 2009, the highest win rate since… BNA’s research division… began analyzing NLRB data in 1984.”How does this shift affect small businesses? Though it may come as a surprise to small-business owners, the vast majority of union elections take place in units of 50 or less. In approximately 50 percent of cases, the owner’s first knowledge of union activity is a notice from the Labor Board. Placed in a reactive mode, the company is often paralyzed.

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In addition to contending with a more aggressive labor movement, businesses of all sizes face a new threat from the newly composed National Labor Relations Board. The NLRB–which has the power to effect change in national labor policy through its interpretations of the National Labor Relations Act–may make it easier for organized labor to achieve its goals.Certain cases the NLRB may decide could shorten the time period for union elections, make it more difficult for companies to replace striking workers, allow unions greater access to employees, and make it harder for employers to avoid unfair labor practice charges.Small-business owners should take proactive steps to avoid being blindsided by unionizing activity. When caught off-guard, company executives may gather workers together and say things that are not permissible under the law.The first step in union prevention is to realize there is a risk. The second step is to accept this business risk as a reality and take steps to minimize it. Promulgating a lawful issue-free or union-free philosophy statement is a great place to start. Employers should also consider performing a self-assessment to ensure compliance with all applicable employment laws, including wage and hour laws.At the end of the day, an employer’s best defense against outside pressure from labor unions is a good offense. Employees who are happy with their jobs and feel they are being treated properly by their employers are less likely to turn to a union for support. Employers should also consider training managers and supervisors on how to recognize the signs of organizing activity and how to lawfully communicate with employees regarding the company’s position on unionization. 

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Michael J. Lotito is a partner at Jackson Lewis LLP. He is one of the nation’s leading authorities on preventive strategies in the workplace. Lotito has served as lead counsel for some of the country’s largest corporations, developing strategic solutions to labor and employment issues and helping them effectively implement business, legal, and preventive strategies.