Union Avoidance: Timelines Shrink and Trust Matters

LAS VEGAS—Union avoidance is more important than ever now that the "ambush” election rule has dramatically shortened election periods, according to Timothy Davis, an attorney with Constangy, Brooks, Smith & Prophete LLP in Kansas City, Mo. And trust in management remains a key part of union avoidance.

Ambush elections “have completely changed the playing field,” Davis remarked at a June 29, 2015, concurrent session at the Society for Human Resource Management 2015 Annual Conference & Exposition.

“The timing is brutal now,” he said. The election period used to be as many as 70 days, but the Clinton administration shortened it to 42 days. In Davis’ experience, three to three-and-a-half weeks is the common timeframe since the ambush rule took effect on April 14, 2015.

Davis said that 21 to 28 days isn’t enough time for employees to move past an initial emotional response and be open to hearing the employer’s side.

Supervisors’ Role

Depending on how deep emotions run, some elections now may be decided as a practical matter before the union petition is filed.

“Two things decide a vote,” he said. First, do workers trust the employer more than the union? Second, does the employer have good communications with employees? Supervisors are critical to both questions.

“Supervisors drive whether employees like working for you or don’t,” he noted.

That’s why when it comes to labor relations success, Davis estimates that supervisors have about 40 percent of the responsibility, HR 35 percent and legal counsel about 25 percent.

Employers need to not only train supervisors to have open-door policies to foster better communications but to identify their supervisors as defined by the National Labor Relations Act. That way, they’ll know who can educate employees about unions before and after employers are hit with an election petition.

Some employers in industries that are at high risk of being unionized go a step further and show videos about unions as early as employee orientation.

Davis doesn’t recommend that for most employers, but he said that managers should be trained about positive employee and labor relations.

Key Strategies

Other steps Davis suggested that a company can take to minimize the chances of unionization include:

• Review policies, practices and procedures to make sure they are legal and effective. An unlawful policy can be grounds for setting aside an election result.
• Benchmark wages and benefits internally and externally so employees feel they are being paid fairly and there is a ready response if higher wages are sought.
• Conduct employee and management surveys.
• Implement a risk-and-response protocol.
• Prepare a union activity and ambush petition response plan and initial materials, such as a draft statement of position in response to a petition for election and key messages to employees.

Changed Timeline

Site and plant managers need to be trained about what to do when they receive a petition for election, so it isn’t just sitting there with the clock ticking. They need to alert HR immediately, so that the employer can post and distribute a notice of petition within two calendar days of receiving the notice.

By noon on the seventh calendar day after the petition, the parties must file and serve statements of position. The employer also must file and serve its initial list of employees in the petitioned-for unit then.

On the eighth calendar day a pre-election hearing is held, and on the ninth there likely is the direction of an election. The first date of posting of the notice of election is on the 10th calendar day after the petition.

Assuming the election order was served on the ninth day, the 11th calendar day after the petition is the last date for the employer to provide the voting list to the National Labor Relations Board and the union. The voter list includes employee names, e-mail addresses and phone numbers. Employers should have that information ready in a centralized database, Davis recommended.

The earliest possible date for an election is 13 calendar days after a petition is filed, he said. But assuming the election order was on the ninth day, the earliest possible date for the election if the union does not waive the 10-day waiting period is the 21st calendar day after the election.

In Davis’ experience since the ambush election rule took effect, one election took place 25 days after, one took place 24 days after and two took place 22 days after the petition.

There are new legal hoops to jump through with regard to ambush elections, he noted, predicting that they won’t be a big deal. It’s the elections being held as soon as practical that is, in his view, “the worst part.”

Allen Smith, J.D., is the manager of workplace law content for SHRM.