Is There a Union Flying Under Your Radar?

The National Labor Relations Board (NLRB) continues to aggressively advance its agenda of making it easier for unions to organize new groups of workers. Just last month the Board set a new legal test for when two separate organizations should be considered “joint employers” for union-related purposes, including liability for unfair labor practices and responsibility for bargaining a union contract.

We had written previously about preventive steps organizations might take to avoid joint employer liability, and such actions should be considered now more than ever following the Board’s decision in the Browning-Ferris case.

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.