The National Labor Relations Board’s new ambush election rules went into effect on April 14 and because of the severely shortened time between the union filing for a vote and when it takes place, employers need to prepare for that eventuality starting now.
The rules – which are seen as a big boost to union organizing – went into effect after President Obama vetoed a congressional resolution that sought to halt their implementation.
On another front employer groups have mounted several legal challenges in different federal courts seeking to overturn the rules, but prospects for the success of these lawsuits are cloudy at best and are certain to take considerable time to resolve.
Regardless of what may happen in the future, employers need to learn today how to create and deploy effective strategies to deal with the of union organizing campaigns in their current reality.
Getting Your Company Ready for Unionization
If you think there is a good chance that your company could end up the target of a union organizing campaign, the first thing you need to do is hire an attorney who is well versed in the intricacies of labor law.
This isn’t just because you will have no time to prepare once you receive notice – which could be as little as 10 days before the vote is held under the new rules.
You do need to prepare in advance, but even more important is that you and other company employees don’t say or do the wrong thing and run afoul of federal labor law.
In one recent case the NLRB overturned an election result that went against the union and granted it certification to represent the employees who had rejected it because of the employer’s violations during the campaign.
Dealing with a Union can be Sensitive and Complicated
If you think that this can’t be that complicated, consider the advice given by attorney Sonni Fort Nolan of the law firm of Husch Blackwell LLP about just the first step after you receive a union election petition.
Once received, you have to post a notice of the petition for election until the vote is held or the petition is dismissed or withdrawn. If you communicate with employees via email, then you are required to circulate the notice electronically.
Failure to comply with the posting or distribution requirement may be grounds for setting aside the election, Nolan warns. In addition, the union is required to provide the employer with information for the posting.
“Many companies don’t feel comfortable with the union providing the information to them so you may want to get advice independent of what the union is required to give,” she advises, pointing out: “It is an honor system.”
That’s just the start. the employer must draft and provide its statement of position to the NLRB no later than seven days after receiving the petition notice from the union.
With that statement the employer is required to provide lists of people who should be included or excluded in the proposed bargaining unit, including name, work location and assigned shift. And the list must be electronic and alphabetized.
The NLRB will hold a pre-election hearing eight days from the date the notice was served. The employer will need to show special circumstances to obtain a delay of even two days, and recent training given to board employees indicates that they don’t intend to grant this if they can avoid it.
Union Votes Can No Longer Be Delayed By Litigation
Votes can no longer be delayed because of litigation by the employer. The NLRB regional director has almost complete discretion over what can be litigated before and after an election. For example, if you challenge the eligibility or inclusion of certain employees, the regional director can let them vote and determine their status later.
Of course, that means supervisors could end up voting. Why is this is especially concerning for employers? Nolan points out that employers are on the hook for any supervisor’s wrongful behavior up to the election, but their status may not be established until after the vote.
“Just as important, if they are found not to be supervisors, then the employer has non-supervisors in on confidential meetings leading up to the election,” she stresses. “To avoid this great care must be made in determining who is and who is not a supervisor.”
The employer is required to provide a voter list provided to the union and the NLRB electronically two business days after the regional director issues a hearing determination, which could be the day after the hearing.
Previously referred to as the “Excelsior List,” it contains name, classification, work location and shift. However, under the new rules it now also must include home address, personal email, home phone and personal cell, if the employer has them.
A post-election hearing covering objections and challenges, which previously could take months to schedule, will occur at least 21 days after the vote.
Retail ‘Ambush’ Response Is Employee Engagement
Members of the National Retail Federation are responding to the new National Labor Relations Board’s ambush election rules by improving employee engagement.
These retailers are focusing on the idea of employee engagement as a key tactic in their union avoidance strategy, according to attorney Diane M. Saunders of Ogletree Deakins, whose firm represents retail clients and who talked about this with the attendees at a recent NRF employment law meeting.
She said these companies are providing employees with a way to have a voice in their organizations without the need for unions, seeking to remove the cause of union elections in the first place.
“Dissatisfied employees result in a decline in employee engagement and organizational dysfunction, both of which provide an opening for union organizers,” Saunders pointed out.
Use Employee Outreach and Engagement to Avoid Unionizing Campaigns
The strategies these retailers are using to improve employee engagement are far more extensive than the usual employee engagement surveys, she said.
Proactive retailers are stepping up their monitoring of social media and training their managers on how to develop their associates and their “voices,” as well as on how to identify and address vulnerable areas and problems in the workplace and fix them, Saunders noted.
Retailers not only are setting up programs and mechanisms to allow associates to tell management what they think through hotlines and virtual suggestion boxes, but they also are creating associate groups to help filter through and act on the suggestions as well.
“They are also using in-house company advocates to publicize the steps the retailers are taking to improve the workplace, as well as to educate employees about what unions can and cannot do,” Saunders said.
