Are Employers Being 'Ambushed'?
Proposed NLRB union-organizing rules are being called 'game changers' by both sides in the debate, and for very different reasons.
By Tom Starner
The National Labor Relations Board has spoken, again, and depending on the point of view, the NLRB's proposed rules on union elections will either streamline union election activity to help employees or threaten workers' freedom and employers' rights.
Among other things, NLRB's rule changes -- which were initially released in 2011 but temporarily withdrawn when the NRLB lacked a voting quorum -- will shorten the time a union has to file a representation petition and the worker vote to certify a union. Currently, the average time for that process is somewhere between 38 and 42 days. The new rules dropped that number to as few as 10 days or up to 20, which, critics contend, creates an "ambush elections" scenario – a serious setback for employers trying to respond to worker demands and union promises. The rules also delay most legal challenges until after an election occurs.
"Unnecessary delays and inefficiencies hurt both employees and employers," said Mark Gaston Pearce, NLRB chairman, in a statement when the new rules were released on Feb. 5. "These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union."
The NLRB public hearings are scheduled in Washington on April 10 and 11, according to the Federal Register. Anyone wishing to speak must submit a request to speak no later than March 31. The board also said additional meetings might be scheduled for April 8 and/or 9.
According to employment law experts, because the new rules were approved with the full five members of the NLRB present, the odds of it being preemptively overturned in court are highly unlikely. Not surprisingly, the "ambush election" rules received a Bronx cheer from opponents on the business/employer side.
"The rule will limit the freedom of speech and expression of workers and businesses alike, and is part of NLRB's coordinated campaign to tilt union elections toward their friends and allies in 'Big Labor'," says David French, senior vice president for the Washington-based National Retail Federation, the world's largest retail trade association.
"The NRF maintains that employers should be given ample time and opportunity to make their case on unionization, and intends to file its formal objections to the ambush election rule," French adds. "We urge the NLRB to live up to its obligation to be an objective arbiter for both employees and employers."
Associated Builders and Contractors Vice President of Government Affairs Geoff Burr calls the NLRB proposal a "a solution in search of a problem," adding that unions are already winning 64 percent of elections, and more than 94 percent of those elections occur within timeframes that exceed the NLRB's own goals related to election timeframes.
"Shortening the election period does nothing to ensure a fairer election, and it is clearly not necessary to help the NLRB meet its self-imposed goal for election timeframes," Burr says. "In addition, it denies employers their rights to free speech and employees the opportunity to make a fully informed decision."
On the other side, AFL-CIO President Richard Trumka said in a statement that his organization "applauds the National Labor Relations Board for proposing these common-sense rules to reduce delay in the NLRB election process."
"When workers petition for an NLRB election, they should receive a timely opportunity to vote," Trumka said. "But the current NLRB election process is riddled with delay and provides too many opportunities for employers to manipulate and drag out the process through costly and unnecessary litigation and deny workers a vote."
While the ultimate outcome of the new NLRB rules awaits resolution, employment lawyers in the meantime say that working within with these new rules is unavoidable when facing union-organizing efforts.
"Going to a 10-to-20-day notice timeframe is a game changer," says Cliff Nelson, one of the co-chairs of Constangy's Labor Relations practice group in Atlanta. "With that, the playing field is tilted in labor's favor. That's very clear."
Nelson believes while employers are losing, the real losers are the employees, because they likely will not be able to get the full story when making their decision.
"That is much less time for the employer to say what they would normally say," he explains. "For example, employees need to know what the union's track record is. How high are the dues? What are the rules? Do they know anything about collective bargaining, or what might happen if there is a strike?"
In addition, the way a union organizing petition is obtained is via authorization card signatures that are obtained by unions talking to employees, both in the workplace and in their homes. Once 30 percent of employees sign, an organizing petition will be forthcoming.
"A union can make promises during that time, but it's illegal for employers to be involved," he says. "So that is also part of the mix in terms of winning employee hearts and minds."
Nevertheless, Nelson says the NLRB rules will force some employers to adjust their workplace culture, because employers are not going to have the opportunity to win elections the way they did in the past -- with information spread out over a three-to-four week period.
Especially vulnerable, Nelson says, are employers who historically offer low pay, weak benefits and a track record of mismanagement in terms of worker treatment. In other words, it's time for some employers to change their ways.
"Employers have to do a better job of managing their employees," he says. "They have to pay attention and gain employee respect, because not only is it the right thing to do, they also can't do it in a 10-or-20 day period."
He says employers that have traditionally paid little attention to fair and balanced HR strategies -- a situation that opens the door to unions to be more savvy and aggressive -- should be particularly concerned with the NLRB rule changes.
"If you have not been paying attention to this, you could be in trouble," he says. "It's time to think about having smart, strong professionals in control and responsible for HR, if you don't already. Employers who ignore these rules do so at their own peril."
Sheryl Willert, an employment attorney in the Seattle office of the Williams Kastner law firm, says that, in the post-NLRB rule world, it is clear that non-unionized employers will need to be much more aggressive in their quest to remain non-union.
"It's imperative that the salary, benefits and the working atmosphere puts employers in a position that lowers the temptation for employees to listen to what the unions have to say. Employees must feel they already have a good deal going," says Willert, a past president of DRI, the nation's largest association of civil defense attorneys.
Doing that may require non-unionized employers to implement a strategic plan that contains elements of crisis management, a plan that can go into "immediate force" and a much shortened timeline than in past union election scenarios, adds Willert.
"If you have something like that in place, you can decrease the chances of losing a union election," she says.
Willert says that, because the NLRB's proposed rules have been floating around for the past two or three years, several of her firm's clients have started their internal response to the NLRB rules proactively.
"They are educating employees as to why unions are not necessary," she says. "It's not union bashing, because it's done in a way that shows at the end of the day the employer is fair and trying to do the right thing for its workers."