by Phil Wilson
You have to hand it to Wilma Liebman. In the final two weeks of her tenure as the Chair of the National Labor Relations Board she clearly decided to go out with a bang and not a whimper. On August 25th the NLRB released its final rule regarding the notification of employee rights under the National Labor Relations Act. Just this week the Board overturned 2 important Bush Board decisions and dramatically changed the way units are determined in non-acute healthcare settings. We obviously live in a very politically polarized time. It was interesting to read Ms. Liebman’s interviews over the weekend as she left the Board, where she focused heavily on this issue. And the fact that the NLRB is issuing decisions and rules in this flurry of activity is exactly what we’ve expected and predicted ever since the current administration took office. What is different today – and I’m not picking sides, this applies to both sides of the aisle – is the willingness to push the pendulum almost as far as you can go. We saw this in the debt ceiling debate. We’ve seen it with the Boeing complaint. Heck, just yesterday there was an unprecedented tug of war over whether the Speaker of the House would permit the President of the United States to address Congress about his jobs plan. And this recent flurry of activity is just the next step down that slippery slope. I think this environment is quite dangerous for American business, and that is both a risk and an opportunity. The problem with all of this regulatory activity is that it creates uncertainty at a time when businesses are trying desperately to make good decisions. This uncertainty can cause bad decisions, but usually it just causes paralysis. And I think that is what many companies are experiencing today. I think one of the main reasons companies aren’t hiring or investing the cash they have is they just have no idea what is coming around the corner. That is the danger. But there is also opportunity. If you’ve never read Economics in One Lesson I can summarize it for you in a sentence. Economics is basically the law of unintended consequences. When our government acts there is the direct action, but then there are thousands of other reactions, like ripples from a stone thrown into a pond. Often those reactions not only counter-act the original event, but many times they completely reverse the intended consequence. Make no mistake. The intention of the notice posting rulemaking is to increase the number of union organizing attempts against companies across the United States. However, there will be many unintended consequences of the NLRB’s rulemaking. As frustrating as it will be for employers to post a road-map for organizing in their break room, this rule also gives companies a unique opportunity to invest in their direct relationship with employees. It provides a reason to reaffirm your commitment to creating a great place to work. Ultimately that is the opportunity. Your company can turn this onslaught of administrative activity into a chance to reinforce your direct relationship with your employees. That is not what unions expect, but it may be just the unintended consequence you need.
