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The National Labor Relations Board’s (NLRB’s) ambush election rule and micro-bargaining decisions may tilt the balance in favor of unions. It pays, therefore, to take some time to brush up on what both require of employers.
Representation Election Rule
The NLRB issued a new rule effective April 14, 2015, shortening the time of a representation election from about 40 days to about 20 days. In addition, the rule requires employers to provide the NLRB and the petitioning union with the phone numbers and e-mail addresses of employees.
Since April 14, 2015, the median time between the filing of a petition and the election has decreased from 38 days to 23 days. During the first half of the year 2015, the winning percentage for unions ticked up slightly to 69.6 percent, from 69 percent in 2014. The union win percentage for July through September 2015 was 65.3 percent. During the same time period in 2014, unions won 64.9 percent of the elections.
With the timeline reduced, employers have less time to react to a filing for an election. Employees have to make a decision with less time to learn all the facts about being represented by a union. Typically, when employees sign a representation card, they believe the promises the union makes, which the union may or may not be able to back up. Employees may be swayed to sign a card based on promises of higher wages, and better benefits and working conditions. Employers are limited in the time they have to present their side to their employees. Therefore, the union has a distinct advantage with the shorter time period between the filing of a petition and the vote.
While the above numbers have not increased the union win percentage dramatically, the new rule still poses a potential issue for employers. The regulations are not yet a year old and the data available is still a relatively small sample.
Also of relevance to the ambush election rule, the NLRB recognized micro-bargaining units in its landmark ruling of
Specialty Healthcare, 357 NLRB No. 83 (2011), and again in
Macy’s, 361 NLRB No. 4 (2014).
Micro-bargaining units are one part of a location or business that can be organized. For example, the receiving department of a warehouse, the shoe department of a retail store and the maintenance staff at a factory are all examples of possible micro-units. Previously, the NLRB would recognize only an entire organization or location as the bargaining unit, having a collective community of interest. An entire workforce would be under one union.
Now with micro-units, employers can possibly have multiple unions representing various employees in the workplace, resulting in multiple contracts and differing terms and conditions of work for each micro-unit. This could lead to additional costs and time for union contract administration. Try to imagine administering a number of differing union contracts in your workplace with different contract expiration dates, different holiday and vacation schedules, different wage scales, and differing benefits to see what a possible nightmare this may become.
Historically, unions have had an easier time organizing smaller workforces than larger ones. Organizing can start in one department of committed union supporters who try to convince the entire workforce to sign cards. In many instances, this takes some time, and word may eventually leak out to management that an organizing drive is underway. With a smaller group, the organizing will be faster and leaks will be less likely to occur. The end result can be that an employer learns of the petition only once it arrives and has just the 20 or so days to develop and execute a strategy to present its side to its employees.
Strategize and Plan
Employers must plan now for the possibility of an organizing attempt so if they receive a petition, they can implement their strategy immediately.
In order to develop a strategy, first examine the workforce to see how it can be broken into micro-units. For example, if employees work in multiple departments on a rotating basis or if there is an overwhelming community of interest within the entire workforce, there may be a less of a chance of having a facility broken up into smaller units. Document the rotations in the workplace.
Look at possible workplace issues, competitive wages and benefits, procedures for resolving employee issues, and communication practices. Review where there are vulnerabilities and what a union organizer could use to gain support.
Develop a rapid response plan. This plan will be the starting point if a petition is filed. Who is responsible for what should be detailed. Who is on the management team to lead the effort, what is the unit, who is the labor counsel?
Unit determination analysis in the event of organizing is an extremely complex exercise, and should ideally be done far in advance of any petition filing.
Finally, training of managers and supervisors should be a regular and ongoing event. Under the old rules, training on union issues often happened after the petition was filed, but now there isn’t the time. Are supervisors knowledgeable about the company’s position on unions so they can inform employees? Do they know what they can and cannot say or do during a campaign? Do they know they cannot threaten, interrogate, promise or spy (TIPS)? How will they react if employees ask them what they should do or tell them details about union activity?
One of the most effective training techniques for managers and supervisors is role play. Have them practice responding to questions and situations. First-line supervisors will make or break any union-avoidance efforts, so they have to be prepared. If they can’t respond effectively to situations and questions, the union will have a much better chance of winning the election.
Bruce Olin is an independent consultant in St. Augustine, Fla., and Michael VanDervort is executive director of HR consultancy Cue Inc. in Clayton, Ga. Both are members of the SHRM Labor Relations Special Expertise Panel.
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