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In the months since a rule was put in place allowing quicker elections after a union petition is filed, elections have become speedier and more numerous. For employers, this increases the importance of making the necessary preparations in advance of a union petition.
On April 14, 2015, a National Labor Relations Board (NLRB) rule took effect, allowing elections to be conducted as soon as 13 days after a union’s petition. In most cases, elections under the new rule are conducted within 21 days after a union petition is filed—compared with the previous average of 38 days. There has been a 14 percent increase in elections held and a 1 percent increase in elections won by unions since the rule took effect vs. during the same period the previous year, according to statistics derived from NLRB fiscal year election reports raw data.
In light of this changing landscape, employers should be aware of the steps that will help them prepare. The following preparations are key to covering the necessary bases:
Identify supervisors. With a reduction in the number of days between when a petition is filed and when the election is held, it is essential that an employer properly identify all supervisors in advance of any union petition. This ensures that management staff can be properly trained before a union campaign and can immediately participate in the employer’s campaign.
Determining who is a supervisor is not done exclusively by title. Job duties, not job titles, control. For example, within the health care industry, assistant head nurses may be classified as supervisors at some hospitals but not at others. In manufacturing, an assistant foreman may be a supervisor for one employer but not another.
When an employer wants an employee classified as a supervisor, the job description and actual job duties must establish that the person has the authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” according to the National Labor Relations Act (NLRA).
Note that the supervisor under the NLRB rule must meet only one of the above listed criteria. However, it’s preferable that a supervisor meet more than one so that the NLRB cannot minimize the supervisor’s role and then conclude that the person is not a supervisor.
Identify appropriate bargaining units. Because a single vote can determine an election, an employer should be prepared to define the unit before any petition is filed.
Regardless of whether the business model is in health care, manufacturing, electronics, communications or any other industry, each employer should determine in advance of a campaign petition what unit the NLRB will likely view as appropriate for an election.
If, for instance, an employer has two manufacturing facilities within a five-mile area, the employer should examine whether the two facilities will constitute a single voting unit. While there is a presumption under the NLRA that a single location is an appropriate unit, this may not be the case if employees have the ability to transfer between and bid on jobs at both facilities.
Within the health care industry, defining the bargaining unit is critical because there are eight appropriate bargaining units (registered nurses, physicians, other professionals, technical employees, skilled maintenance employees, business office clerical employees, guards and other nonprofessional employees). For example, professional employees who are involved with direct patient care, who graduated from an accredited nursing school and who are required to pass a uniform state licensing exam are generally included under a registered nurses (RNs) unit.
On the other hand, there are NLRB cases in which RNs have been excluded from the unit when their duties are limited to admitting and discharging patients, as well as instances in which an RN instructor/computer training coordinator, a staff nurse in the registry pool and an RN utilization management analyst have been excluded from an RN unit.
These inclusion and exclusion issues also surface with regard to what classification of employees will be included in a skilled maintenance unit, as well as the other hospital bargaining units. For example, the NLRB in some cases has excluded a system analyst, electronic technician and secretarial personnel from a skilled maintenance unit. In many cases, the NLRB has included and excluded the same job classification from a skilled maintenance unit in different cases, such as electronic technicians, biomedical electronic technicians, support services electronic technicians, materials coordinators and systems coordinators.
Prepare employer campaign materials. In advance of any union petition filing, it is essential that an employer develop materials that will allow employees to make an informed choice on whether a union is in the best interests of the employee, the employer and the corporate mission to meet the needs of the customers, clients or patients.
An employer needs to make sure employees are aware of monthly union dues, the strike history of the union and the risk inherent in the collective bargaining process. For instance, an employee may obtain increased wages and benefits and pay monthly union dues, maintain the same wages and benefits and pay monthly dues, or even obtain lower wages and benefits and still pay monthly dues. Two of these three outcomes are not in the best interests of the employee.
With the shortened time frame between the filing of a union petition and an election, an employer should consider in advance of a union campaign the use of a video as part of its employee orientation program, or as an annual update on union matters, to assist employees in knowing the disadvantages of unions so that employees may make an informed choice.
As for the use of video in various union campaigns, there are several options. Management at larger companies, in consultation with legal counsel, may produce an in-house video. For smaller employers, videos that deal specifically with different unions can be purchased at cost-effective rates. There is also the option of customizing a standard video to meet the needs of the individual employer. The object is to educate employees so that each individual will make a decision based on the facts and not union promises.
The landscape has been drastically changed as a result of the NLRB’s new election rule. The key is to take the steps to prepare before a union petition is filed.
Dennis G. Collins and Kevin T. McLaughlin are attorneys in the Employment & Labor practice group at Greensfelder, Hemker & Gale, P.C., in St. Louis, Chicago and Belleville, Ill. Collins is a former trial attorney with the NLRB and the Equal Employment Opportunity Commission.
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