Contending with 'Quickie Elections'

This article accompanies Don't Get Ensnared.

Wednesday, June 17, 2015
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Employment attorneys largely agree that the National Labor Relations Board's so-called "quickie election rule," which went into effect in April and greatly compresses the allowable timeframe for union elections, puts employers at a disadvantage versus unions.

"Statistics show very clearly and dramatically that the rate of union success in elections varies adversely with the amount of time between the filing of a petition and the election," says Proskauer's Joseph Baumgarten. "Very often, the employer is behind in engaging in a lawful campaign to express ideas, opinions and arguments against unionization."

The new rule doesn't serve employees well, either, says Fisher & Phillips' Charles Caulkins.

"It is unfortunate that the NLRB is implementing a process that really works to the disadvantage of employees to be fully informed of the issues," he says. "The [National Labor Relations Act] is supposed to be for the employees' benefit."

The NLRB says the new rule is necessary in order to streamline the election process and eliminate unnecessary litigation and delay.

The rule highlights the need for employers to be proactive by constantly examining and re-examining the terms and conditions of employment, says Baumgarten. This can range from a periodic examination of policies to conducting environmental reviews of the workplace and designing effective dispute-resolution processes.

"Give employees a voice in the workplace, because the alternative could be a union campaign," he says.

Training supervisors on how to properly respond to and address employee complaints and concerns is also important, says Seyfarth Shaw's David Baffa. Doing so will not only bolster morale, but make it less likely unions will have an issue to exploit.

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"If a manager gives employees the stiff arm, it sends them outside to social media and other places, where they'll do their griping and complaining in a public forum," he says.  

By the same token, HR should ensure that managers are properly trained to ensure they don't unintentionally run afoul of the NLRA. The training doesn't need to be in-depth, but should be enough so they understand what constitutes protected concerted activity, says Caulkins.

"If the guys on the shop floor say, 'We're not working until you get some fans in here,' the supervisor should understand that threatening to fire them unless they get right back to work is a violation of the law," he says.


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