This year April 15 is not necessarily the worst day for entrepreneurs. It might be April 14, the day the new rules on union elections published by the National Labor Relations Board go into effect.
The purpose of these rules is to shorten the period of time between when a union’s files a petition for an election with the NLRB and the election date. Under the new rules, elections will take place probably from two to three weeks after a petition is filed instead of four to six weeks, which is now the case, as the NLRB explains on its site.
The new rules let unions campaign against an employer furtively for an extended period of time but the employer will have only a small window of opportunity after a petition’s been filed to listen to employees’ concerns, debunk misinformation and explain the potential risks and realities of unionization.
I have had many clients win union elections after five or six weeks, and I’m not sure they would have won with only two or three weeks under these new “ambush” election rules.
The goal must now be to avoid elections in the first instance as opposed to waiting for a petition and trying to win over employees to the employer’s view with a campaign. Employers should develop a plan to detect union activity early in the game and have management rapidly respond. The more employees know, the less likely they will be to sign a card that the union can use to petition the NLRB for an election.
Follow these three key elements to create a rapid response plan:
1. Train supervisors.
Any training should address why there’s a need for supervisors to report potential union activity to a designated person or team.
The training of supervisors should start with their role: Supervisors can be compelled by the employer to speak on the company’s behalf about why management does not believe a union is the best interests of the company or its employees.
Supervisors should be educated in potential direct and indirect warning signs of union activity and to whom they should report them. And supervisors should receive guidance on what they can and can’t say or do according to case law. For example, while supervisors should report warning signs of union activity, they must gain such awareness without impermissibly interrogating or spying on employees.
Before you train supervisors, determine who they are under the National Labor Relations Act. Don’t assume everyone with the title of “supervisor” will be one according to the act. Some won’t be. The NLRB is interpreting the term narrowly so a critical analysis must be done for any putative supervisor.
Supervisors are not considered employees under the act and employers can effectively control supervisors' actions.
It would be unlawful to include most nonsupervisors in the training discussed in light of its content.
2. Assess the risk.
Have a diverse team assess the level of risk so you don’t under- or over-react to actual or potential union activity.
The risk to employers of ambush elections is even greater when you consider the NLRB’s decisions about what is an appropriate bargaining unit. In another gift to organized labor, the NLRB has approved the designation of micro-units that could be as small as a department or even a classification of employees.
A union can petition the NLRB for an election if 30 percent of the employees in an appropriate unit sign cards. The smaller the unit, the easier it usually is for a union to have the necessary amount of cards signed.
No employer can take its nonunion status for granted. To the contrary, employers must prepare now for an ambush election from what may be but a small group of employees in their workplaces.
3. Prepare a response.
Developing a rapid response plan is but one key step that an employer should consider. Have campaign materials ready to go on a moment’s notice since time is of the essence.
The new ambush rules could be subject to challenge by many business groups. But unless the rules are enjoined, employers will have to play by rules stacked against them in just a few short months.
This piece should not be construed as legal advice or as pertaining to specific factual situations.