
As if these challenges were
not enough for employers to contend with, the NLRB’s General Counsel has now issued
a memorandum indicating
that the NLRB will permit unions to use electronic signatures for organizing
purposes under the Board’s new rules, which provide
significantly quicker timelines for union elections.
The NLRB’s acceptance of
e-signatures will be a major benefit to unions in helping them make their
critical “showing of interest” to the NLRB in conjunction with a union election
petition. For the NLRB to conduct a representation election, a union must first
demonstrate that at least 30 percent of the workforce has expressed interest in union
representation. Historically unions have used “authorization cards” for this
purpose, collecting signatures on cards by face-to-face contact with workers.
Under the guidance issued
by the General Counsel, there is little an employer can effectively do to
challenge e-signatures presented by a union to make its showing of interest. Permitting
the use of e-signatures means that a union will literally be able to conduct an
entire organizing drive “under the radar” by electronic means that are never
visible to the employer.
Once it has petitioned the
NLRB and presented the e-signatures, the NLRB will conduct an election within
about 25 days. In that very short period an employer will be under extreme time
pressure to respond to the union’s petition and raise any issues essential to
the election. Primary among these is whether the grouping of employees sought
by the union is appropriate, the analysis of which takes some time and must
account for a variety of considerations important to the employer.
The key for employers in
successfully navigating this streamlined organizing process and abbreviated election
timeline is being prepared before the union ever files for an election. Smart
preparation for an employer interested in union avoidance will include:
- Identification of managers and supervisors who will not be part of any unit represented by a union.
- Training those managers and supervisors on effective employee communication and other critical factors in employee satisfaction.
- Training those managers and supervisors on what they can and cannot do and say regarding union organizing, which varies under the labor law depending on the level of union activity in the workplace at any particular time.
- Careful analysis of potential employee grouping into “bargaining units” and strategies for using this in the employer’s favor.
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