New NLRB Rule Makes it Easier for Unions to Organize Workers

By Craig M. Brooks

Several weeks ago, the National Labor Relations Board (NLRB), by a divided, partisan vote, adopted a new rule designed to make it easier for labor unions to unionize employees.

The main thrust of the new rule is to make it easier for unions to win representation elections by shortening the time period between NLRB filing and election date, and removing or making more difficult employer objections to this process. The NLRB’s announcement of the details of the new rule, available here, fills nearly 200 pages of the Federal Register and goes into effect April 14, 2015. Some highlights are:

  • employers must submit position statements within seven days of notice of the election petition, with the employer barred from later raising issues not presented here;
  • the pre-election NLRB hearing will be held eight days after notice of the election petition, with the right to file post-hearing briefs removed;
  • voter eligibility issues are deferred until after the election; and
  • within two days (rather than the prior 7 days) after the NLRB directs an election, the employer must electronically provide a list for the union of each employee’s name in the voting group, along with more contact and identifying information than before (employers are to now provide not only employee name and home address but also personal telephone number, e-mail address, work shift, work location and job classification).

It will be very difficult for unprepared and unsuspecting employers to effectively respond within the new rule’s one-week time period. While the NLRB did not set a specific time limit for how quickly the election itself will occur, the NLRB’s Regional Directors will set the election date; and the general expectation is they will set elections to occur within 10 to 21 days after the filing of a union petition—a short time period.

Practical wisdom and experience in this area is that the more time an employer has to educate its workforce and supervisors about the realities of union representation, the more likely the employer will win the election. Thus, the obvious pro-union thinking behind these changes is to give employers less time to react to a NLRB petition so unions will win more workplace representation elections. No doubt, this new rule will be challenged through law suits and Congressional debate. One major issue will center on whether fairness and due process is afforded employers to be able to adequately react and lawfully determine their position on the legal and practical issues (e.g., which employees are eligible to vote in the election and the concerns prompting employees to consider a union) and voice their positions to employees.

Regardless of the outcome of the likely challenges to the rule, employers need to prepare for, and take advantage of, the fundamental principle behind this rule which is that education—primarily of supervisors—to help understand the issues involved will best prepare those supervisors and employers to face not only union challenges but any legal claim in the employment setting. Moreover, this education will increase productivity.

Most employers don’t think their workforce is susceptible to union organizing. But, unions work behind the scenes to keep their organizing activities hidden from employers until they get more than enough employee signatures to file with the NLRB for a union election. Union organizing usually takes place over many months at a minimum. Even though a union only needs signatures from 30 percent of the employees to trigger an election, most union organizers will wait until over 60 percent of the employees sign up, as organizers know that once the election petition is filed with the NLRB, the employer will take initiative to educate employees, which reduces the number of employees who actually vote for a union in the election. So, while it was always so, it is particularly true now that the employer who waits to receive notice from the NLRB of the filing of a union election petition is severely hampering its ability to respond and fairly educate employees. The expected 10-21 days between election petition filing and an election is not much time for an employer to respond.

The key questions employers should ask themselves in light of this: are they at risk and what should they do? The extent to which you as an employer are at risk depends on the quality and understanding of your supervisors and managers. The number one reason, far and above any other reason, why employees vote for a union is they feel the need for protection from individual supervisors and managers who they feel will take advantage of them if given the chance. Wages and benefits often get a lot of lip service in a union organizing campaign, but when successful, the real reason the union wins is employee mistrust and fear of individual supervisors. You don’t want to be that employer or that supervisor, for all kinds of reasons.

Once unionized, there is an increased risk and costs of strikes, time spent in grievance meetings and labor negotiations, as well as the inflexibility of labor contracts and the agendas of individual union representatives (which may be personal agendas rather than concern for the company or the majority of the employees). The risks are similar for non-union employers as they are for those who with a portion of the workforce already unionized. It’s common for labor unions to try to expand their influence and source of dues.

The same problems and poor supervision that cause unionization also cause other costly legal claims such as employment discrimination, wrongful discharge, whistleblower, and other claims. If done well, the training for supervisors to prevent discrimination and other legal claims is very similar to the training regarding union organizing. Indeed, training on general employment law points, that never mentions unions, is also very effective regarding the risk of unionization. This is because getting your supervisors to understand how employment law works in general is a great way to help them avoid problems whether the workforce is unionized or not. Employment law (e.g., discrimination, retaliation, labor law, etc.) contains presumptions that generally punish employers who manage poorly, so those managers who understand how to avoid the legal traps are actually learning how to be good managers in the process. Just telling supervisors to be good managers never works, but showing them how others interpret their actions, such as courts and juries (similar to employees and unions), does get the message across because they can imagine themselves as jurors. In other words, being the kind of employer that employees don’t feel the need for protection from is good bottom line management that saves money in legal fees and increases employee productivity and dependability.

There are some clear explanations about the approach involved behind most employment laws that will allow supervisors to understand how to avoid making themselves a target for claims, without sacrificing their ability to manage the organization. These explanations show how it is in a supervisor’s not just his/her employer’s best interest to take the time to minimize the risk of claims. The result is a reduction in long term legal costs and an improvement in productivity, whether or not there is any union organizing. In short, you can make yourself a better and more profitable employer.

We at Houston Harbaugh enjoy presenting and appreciate the benefit of well-done training on employment issues in general, whether or not unionization is explicitly included. Our preventive track record on both unionization and preventing discrimination and other employment law claims speaks well for itself where we have done this training. The training to achieve this result need not be time-consuming or expensive.

Don’t let the mention of the new NLRB rules work against you. Let them prompt you to become a better employer. Plan now for a short training session of your supervisors and managers to minimize your long term legal costs and problems while increasing employee productivity.

Please contact me  to get more information on this subject matter or to schedule a training session.