CHICAGO—The National Labor Relations Board (NLRB) under the Trump administration already has overturned much of what was accomplished by the Obama board—or is in the process of doing so.
Take the "ambush" election rule, which the current board has signaled interest in rescinding. Even so, noted Timothy Davis, an attorney with Constangy, Brooks, Smith & Prophete in Kansas City, Mo., the threat of unionization remains and employers need to be prepared.
Speaking at a Tuesday concurrent session at the SHRM 2018 Annual Conference & Exposition, "Protests, Progress and the New NLRB: The Trump Effect on the NLRA and Employee Relations," he outlined seven steps employers should take to minimize the chances of being unionized.
'Ambush' Election Rule
The Obama board issued the rule in April 2015 to modernize union representation election procedures. The rule significantly shortened the time between when a union files an election petition with the board and when the union election is held from 42 to 21 days. The Trump administration's NLRB issued a request for information on the rule on Dec. 14, 2017, asking whether the regulation should be withdrawn in full or in part. In April 18 comments to the NLRB, SHRM called on the board to rescind or modify the rule, which it said invades workers' privacy and unfairly burdens employers.
[SHRM members-only HR Q&A: What is the function of the NLRA?]
In the first two to three weeks after a union petition is filed during the union election period, employers typically are trying to calm employees and inform them about what unionization is really like, Davis said. He thinks any rule issued by the NLRB may raise the number of days to a minimum of 35 and possibly even 42 again. Davis said 35 days should be enough time for an employer to fully inform employees about unionization, unless the company has really big employee relations problems.
He noted that since the ambush election rule has been in place, he's lost more elections (four) than he had in the preceding two decades (just three).
Davis said employers can help avoid unionization by:
- Reviewing policies.
- Benchmarking wages and benefits.
- Conducting employee management surveys.
- Training management on positive employee labor relations.
- Analyzing an organization's weaknesses.
- Implementing a risk/response protocol.
- Preparing a first round of union avoidance materials.
The most important point is to practice good employee relations, Davis said.
Kara Fox-LaRose, president and general manager of ilani, a casino resort in Ridgefield, Wash., and a session attendee, noted that a positive environment is key at ilani, which at only a year old has 1,500 employees.
Supervisors should be trained but not overtrained on legal requirements, Davis said. The message shouldn't just be why a union might be bad but why the company is good, he suggested.
Unions often promise more money, so be ready with benchmarking data to explain how wages are paid fairly. Make the explanation short and simple enough "to fit on the back of a business card" or managers may not be able to communicate the message, he said. For example, "Our business pays top 20 percent in the industry" or "Our company pays top 10 percent in the county." If the company can't pay top dollar and is in a competitive market, be ready to explain that, Davis recommended.
Davis said he has a love/hate relationship with surveys but likes the ones that allow written comments, as they help a company uncover and resolve employee relations problems.