Thursday, February 2, 2012

What’s Going On at the NLRB: “Quickie” Election Rules Passed and in Process

The National Labor Relations Board has adopted procedural rule changes that would alter how the union representation process unfolds by accelerating the timeline from petition to election.  These and other proposed changes have caused alarm because they are perceived as an effort by the Board to restrict employers’ right to communicate opposition to union organizing.  But another cause for concern should be the administrative headache, nay migraine, the Board’s new rules will likely create. 

If you’re a non-union employer, you may be caught off guard by the administrative burden, not to mention human drama and lurking unfair labor practice charges, that are par for the course when a union organizing campaign gets underway.  Even if you’re well aware of organizing activity prior to any official filing with the Board, the period between petition and election is often fraught and can be difficult to navigate, especially if you believe that a union in the workplace won’t advance your employees’ interests. 

In case it’s helpful, here’s a short, very general overview of the union representation process before an election takes place:

1) Pre-petition.  A union organizer (often employed by the union) connects with one or several employees interested in organizing.  They work to gather support with the ultimate goal of getting employees to sign cards showing their support for the union. 

Note: At no point do you, the employer, get to see the cards.  It’s also not okay for you or your agents (managers, supervisors) to ask employees if they’ve signed a card, nor should you ask employees if any other employees have signed cards. 

Once enough cards are signed to pass the Board’s test for a “showing of interest” in union organizing, the union may ask you, the employer, to voluntarily recognize the union as the employees’ exclusive collective bargaining representative.  If you don’t voluntarily recognize the union (or if they never ask), the process proceeds to step 2.

2) Petition filed.  The union files a petition with the NLRB seeking to be certified as the exclusive bargaining representative for whatever group of employees it names in the petition.  You get notice of the filing, along with a bunch of other paperwork the Board asks you to complete.  (The question at this point is: Are you, the employer, within the jurisdiction of the NLRB?  If you’re not a public entity and you buy anything else that has ever passed through another state...toilet paper, pencils, you name it... the answer is probably yes.) 

The date the petition is filed is a line of demarcation.  Different rules apply in a post-petition world. 

3) Post-petition, pre-election.  Welcome to “laboratory conditions.”  During the laboratory conditions period, the workplace is supposed to stay just like it was pre-petition.  Doing new things - giving raises, introducing new work rules, changing policies - gives rise to an inference that you’re making the changes in order to influence the election, which could result in the election being overturned.  But you also can’t hold back from doing things already set in motion before the petition was filed.  If you announced a rule prior to the petition and set the date it would take effect, or if you always give step increases to a group of employees at this time of year, holding back may give rise an inference that you are doing it in order to influence the election.  Labor counsel can help you navigate what you can’t do and what you should do.  But whatever you do, the union will likely complain.

Also during this period the union is waging a full-out campaign for employees’ hearts and minds, as you may be if you undertake to oppose having a union in the workplace - albeit within the boundaries set by the labor law.  (Here again, labor counsel can help you navigate.)  But even before you can think about a campaign, you have to figure out who the union seeks to represent.  You have an obligation to provide to the union a list of employees eligible to vote in the election, including their home addresses, so that the union can wage their campaign. 

One of the Board’s proposed rule changes would require you to include email addresses and phone numbers in your list of eligible employees.  Making up this list begs two different questions.  One question is which group of employees the union is seeking to represent and does this group make sense as a bargaining unit?  The other is which individual employees belong in that group?

One of the rules the Board has already adopted is to limit opportunities for pre-election hearings to hammer these issues out ahead of time.  In general, unless a large number of employees is in question, the employer’s options are to stipulate to the union’s view of who is in the unit or to challenge individual voters on election day and wait for everything to be cleared up after the fact.  

The Board’s purpose for its proposed changes it to “reduce unnecessary litigation” and to “streamline pre- and post-election procedures.”  It is hard to see how leaving it all for later means that litigation will be reduced.  It will be postponed, certainly, and without the benefit of having clarified or narrowed issues prior to the election. 

In addition to eliminating pre-election hearings, the Board’s new rules shrink the time period between petition and election.  In the past, this period has averaged 42 days.  Going forward, elections must take place “as soon as practicable,” which could be as soon as 14 days from when the petition is filed.  During this short period, employers will not only be pressed to get their heads around who is an eligible voter in pending elections, but also to craft and communicate a position on whether a union will be a net benefit to employees.

Defining appropriate bargaining units and all the issues related to it are probably not front of mind for non-union employers.  However, under the Board's new and proposed framework, the learning curve will be extraordinarily steep if and when employees think about organizing.  We recommend that non-union employers pay attention now, in order to avoid being overwhelmed later.

No comments:

Post a Comment