For nearly 80 years the National Labor Relations Board (“NLRB”) has conducted workplace elections to determine if workers want to be represented by a union. The NLRB recently issued changes to the election rule, which are scheduled to take effect on April 14 and will dramatically speed up the election process. The new rule was passed on a 3-2 vote and has created controversy in that revisions tend to favor union organization and has been dubbed the “Ambush Rule” by many parties. A dissenting NLRB member wrote that the new rule impermissibly “limits the right of all parties to engage in protected speech at precisely the time when their free speech rights are most important.” According to the dissenting NRLB member, this new rule speeds up the election process by “improperly shorten[ing] the time needed for employees to understand relevant issues compelling them to ‘vote now, understand later.’”
The new rule allows elections to be held in as little as 14 days after the employer is notified of the election petition. Under the previous rule, the average time for election was 42 days from the filing of the petition and most elections (90%) were held within 56 days of the filing of the petition. Due to the shortened time period, employers who want to counter a union’s organizing efforts will need to be proactive and take steps now as compared to past practice of waiting to take action until after the filing of the petition.
Another component of the rule change is the postponing of evidence taking and litigation over important issues, such as voter eligibility, until after the election. The rule also requires employers to turn over to the labor union their employees’ personal information, such as home and cell phone numbers and e-mail addresses to assist in the union organizing campaign.
Both houses of Congress passed resolutions disapproving and seeking to block the new rule changes issued by the NLRB. President Obama vetoed the resolutions rejecting Congress’ attempt to overturn the NLRB rule changes. As a result, the rule changes will take effect unless Congress can garner the two-thirds majority to approve the resolution and override the veto. On another front, court challenges have been filed by the National Right to Work Foundation, Associated Builders and Contractors, National Federation of Independent Businesses, U.S. Chamber of Commerce, National Association of Manufacturers, National Retail Federation, and Society for Human Resource Management. However, employers who may be affected should not wait for further Congressional action or a ruling from the courts before analyzing and addressing these rule changes.
The points below identify issues that employers concerned about the impact of unionization should promptly consider before a unionization campaign ever begins. However, consideration of these points go far beyond preventing a successful union campaign and raise issues of general employee and workforce management.
- Do you have a union-free statement in your employment policies? Employees want to know what the company thinks. If you care about this issue, adopt a statement in your handbook that says so. There are NLRA rules about the content of these statements. Legal review is imperative.
- Evaluate your supervisors. Where is supervision strong? Where is it less so? Are you clear on who is and is not a supervisor? These issues not only will have an impact regarding who may be eligible to be in a union, but also will impact whether a union is attractive to your employees. For instance, if employees do not feel that your supervisors are behaving “fairly” or are showing favorites to some employees, they may be more likely to find a union attractive.
- Evaluate your employees’ concerns. What wage and benefit programs are best liked? Liked the least? How is employee morale? Who are your “problem children,” and how are their difficulties being addressed? Do employees believe that they are empowered to discuss concerns with management and to have those concerns promptly addressed? Or do they feel like they need an outside advocate?
- Consider communications with your employees. Where are lines of communication with employees strong? Where are they less so? Oftentimes, employees fail to understand the benefits that a company is already offering, so ensuring that employees understand their current benefits is critical. Likewise, employees may feel like they need an outside “voice” if there are not open lines of communication. Once a petition to recognize a union is filed, there will not be time to develop strong and trusted lines of communication. These must be established now. You will need one or more spokespersons from among your managers and supervisors if a unionization campaign begins. Who will they be?
- Train your supervisors and managers, then train them again. Supervisors need to understand what they can and cannot do with regard to unionization efforts, what they should be watching for, and what they should and shouldn’t do about it. Employers are frequently the last to know when their employees are being organized. With these much shorter time frames, the earlier an employer finds out about a potential unionization campaign, the more likely that the employer can effectively respond. Proper training of your supervisors with regard to these issues will help avoid an unintended unfair labor practice charge.
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