As we have previously reported here and here, the National Labor Relations Board’s (“NLRB”) new rules governing union representation elections go into effect today, April 14, 2015. Congress passed a resolution disapproving the new “quickie” or “ambush” rules, but President Obama vetoed it. While lawsuits have been filed in Texas and the District of Columbia challenging the new rules, at this point no court has halted their implementation. Thus, absent late-breaking developments, employers need to be prepared for this brave new world.
Under the new rules, elections will be expedited. Disputes over the unit selected by the union will be resolved in a hearing normally scheduled for no more than eight days after the filing of the petition. Moreover, the employer must identify all of its concerns with the group of employees targeted by the union in a “statement of position” filed the day before the hearing, or those arguments will be waived. Excelsior lists must be provided more quickly, and elections will be held within 10 to 25 days after the filing of the petition.
The bottom line: by design, employers will not have adequate time to prepare a campaign to educate their employees about the issues that will arise if they vote for union representation. Thus, it is imperative that all employers evaluate their risks of union organizing activity, and do what you can now to prepare ahead of time.
Human resources and industrial relations professionals identify a number of factors that can make employees more susceptible to union organizing. No employer is free from all of these characteristics, but a prevalence of more than a few of these factors will make the employer an attractive target for the union organizer. Those include:
- Pay or benefits that are not competitive
- Poor communications
- Rapid or constant changes in schedules
- Safety or health concerns
- Broken promises
As employers audit these vulnerabilities, the key is to remember that perception is far more important than reality. For instance, few managers think that they play favorites. But will employees perceive that opportunities are being shared fairly, or discipline applied uniformly? Managers invariably complain that employees may not know all the facts, but the union organizer will not give the company the benefit of the doubt. If you conclude that employees may perceive these issues to be problems, whether true or not, the employer needs to act – sooner rather than later.
After assessing these and other risk factors to identify vulnerable groups of employees, what can an employer realistically do ahead of time to prepare for potential union organizing drives? While it is impossible to have a campaign ‘in a box,’ there are a number of possible steps that every employer with non-union operations can at least consider:
- Consider what you can do now to address any of the most glaring vulnerabilities you have uncovered in your risk assessment. Once a petition has been filed, you are stuck with the ‘status quo’ through the election.
- Carefully analyze foreman, leads or charge employees to be certain who are statutory “supervisors” under the NLRB’s standards. In any union election campaign, supervisors are the employer’s eyes and ears, but also the company’s voice – yet under the new election rules procedures, the employer may not get any determination as to whether employees who are close to the line are or are not supervisors.
- Carefully train supervisors and managers about the warning signs for union activity — in all likelihood, the union organizers have been working with employees in secret for weeks or months before an election petition is filed.
- Train supervisors and managers how to lawfully communicate the company’s messages regarding unionization.
- Make sure your handbook or company policies will pass muster under the boards current (aggressive) standards – as we discussed here.
- Along those lines, if you would prefer your company remain nonunion, tell your employees that, and why.
- For at–risk groups of employees, plan the outline of a 10 to 21 day campaign: who would you have communicate the company’s story, how would you organize employee meetings, and what would your messages be?
Most of these efforts should be coordinated with an attorney familiar with the standards developed by the Board. Those requirements are frequently not at all intuitive, and many times differ from standards developed under other employment laws.
The only way to deal with the possibility of an ambush is by preparing ahead of time. Employers are well advised to consider the suggestions above now, while they still have time – because they will not have time under the quickie election rules.