Union Avoidance

Union Sneak-Attack Election Rule Void - For Now

Remember the NLRB's new sneak-attack union election rule?  The rule lets unions surprise complacent companies with fast-track union elections.  A federal court in DC just invalidated the rule.  That's good news for employers.  For now, at least...

The court nailed the rule on a technicality.  The two Democratic members of the NLRB basically passed the rule over e-mail without any reply from the NLRB's lone Republican member.  That wasn't a quorum, said the court.

Still, the court emphasized that its ruling "need not necessarily spell the end of the final rule for all time."  The door is open for President Obama's newly-appointed NLRB to pass the rule again.  The court put it this way:

[I]t may well be that, had a quorum participated in [the rule's] promulgation, the final rule would have been found perfectly lawful. As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.

Expect the NLRB to take a second bite at the apple.  I think it’s just a matter of time.  But what should employers do while we wait?

You might take steps now to resist a union organizing drive in short-order.  Unions thrive on the element of surprise, even under the current union election rules.  We've written about it before.  That puts advance preparedness at a premium.  For example, you might:

  • Identify employees who qualify as "supervisors" in the NLRB's eyes, so they can be trained how to spot and react to covert union activity.
  • Ask your employees about their job satisfaction and address any concerns before a union does.
  • Task a rapid deployment team who is armed with an action plan to execute if you detect union activity.
  • Check your employee handbook for provisions that could trigger an unfair labor practice charge, such as an overly broad social media policy.

I doubt we’ve heard the last from the NLRB.

NLRB Approves Union Sneak-Attack Election Rule

Over the past few weeks, most folks were eating holiday dinners and celebrating the new year.  Not the NLRB.  The Labor Board rolled up its sleeves and cranked out more pro-union measures.  And President Obama appointed three new members to the five-member Board.

Just before Christmas, the NLRB revamped the union election process.  The process is now geared to catch you sleeping.

Union elections have typically happened about 42 days after the union fires the first shot by filing a union election petition.  But now, the NLRB's new rules will likely slash that to a little over 20 days.  Possibly even less.  That's your window of opportunity to educate your employees on how having the union would give them a raw deal.  The shorter window gives unions an edge—a smart union secretly courts your employees for months before filing a petition.  The rules become effective on April 30, 2012.

We've written before about how to deal with the new union sneak-attack election rules.  It's all about doing your legwork in advance.

Keep an eye on legal challenges to block the NLRB's new union election rules.  One lawsuit has already been filed, and the House passed the Workforce Democracy and Fairness Act.

Like the new union election procedures weren't enough, President Obama appointed three new members to the NLRB.  The appointments must normally pass the Senate, yet the President moved forward while the Senate was out of town.  Here's what The Washington Post had to say about it.

Expect big things from the Labor Board.

Quickie Union Elections: Back on the NLRB's Agenda

Your workforce is union-free?  Great, but watch your back.  The NLRB has proposed rule changes that could saddle your company with a union in 10 days flat.  Sounds like a union sneak-attack.

Unions thrive on the element of surprise.  Many successful unionization drives start with the union secretly courting your employees for months.  The union quietly hunts for unresolved employee concerns and exploits them.  Union bosses promise to fix your employees' concerns at the collective bargaining table, hoping to foster an "us vs. them" mentality against management.  Riding that momentum, the union files a petition with the NLRB to hold a union election.  That's often the first time management gets wind of the union trouble.

Your window of opportunity is now short.  Over the few weeks leading up to the union election, you must combat the groundwork that the union has been covertly laying for months.  Every single day counts.

The NLRB's rule changes would tighten several already-stringent deadlines.  The net effect is that union elections likely would be held 10 to 21 days after the union files an election petition.  That could cost you several weeks' of time to educate your employees on how a union would hurt them.

The proposed changes also strip away critical pre-election appeal rights.  One example tells the story.  If a union gerrymanders the group of employees who will vote in the union election, you can currently challenge the gerrymandering before the election.  But the rule changes would delay your challenge until after the election, so long as the gerrymandering impacted less than 20% of the employees eligible to vote.  In close elections, just 10% of the vote is often plenty to swing the result.

The sole Republican member of the NLRB dissented from the proposed changes because they would "effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining."  He even took a shot at the NLRB's pro-union motives in proposing the changes:

In truth, the “problem” which my colleagues seek to address through these rule revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections.

Facing the threat of a union sneak attack even under the current union election rules, companies can push back.  Many companies take measures to stay union-free long before union organizers come knocking.  For example, you can:

  • Identify employees who qualify as "supervisors" in the NLRB's eyes, so they can be trained how to spot and react to union activity.
  • Personally communicate with your employees on their job satisfaction and address any concerns before a union does.
  • Task a rapid deployment team who is armed with an action plan to execute if you detect union activity.
  • Check your employee handbook for provisions that could trigger an unfair labor practice charge, such as overly broad social media policies.

Union avoidance is all about advance preparation.  Without some basic fundamentals, it may be too late when the union election petition crosses your desk.  And the NLRB's proposed changes hope to seal the deal.