Learn how new NLRB rules could change that and how you can protect your business
By Douglas Darch
The National Labor Relations Board is expected to finalize major rule changes this year designed to make it easier to unionize a workplace and harder for employers to legally persuade employees to vote against union representation.
The proposed rules have the potential to affect every private employer in the U.S. by shortening the time between a union’s filing of an election petition and the election—making it easier for unions to win. This means that mattress producers and component suppliers should take the time now to learn how the new rules will affect their businesses and what they can do to prepare for these important changes.
What is the NLRB?
The NLRB is an agency of the federal government established in 1935 to enforce federal laws dealing with union-management relations. The NLRB can have up to five members that are appointed by the president and approved by the Senate. Today, all five-board seats are filled, three by Democrats and two by Republicans.
What’s At Stake?
The New York Times reported last year that union membership had fallen to its lowest level in nearly 100 years. Membership dropped by 400,000 workers in 2012 alone, despite the economy having added 2.4 million new jobs that year. To combat this long and steady decline, the union movement for years has sought rule changes to make it easier to unionize new workplaces.
What is ‘card-check’?
For decades, the NLRB has required an employer to negotiate with a union only if a majority of its employees voted through a secret election in favor of union representation. But since unions were losing many elections, labor leaders asked Congress to eliminate the secret ballot and instead force employers to recognize a union if a majority of employees just signed cards saying they support a union. Unions called this approach the “card-check” process.
Employers objected to card-check because union representatives could intimidate some employees into signing a union representation card. They argued that the secret ballot process protected workers from such abuse. Employers also claimed that card-check did not allow them to explain to their employees why they might not want union representation. Although President Obama and many members of Congress supported card-check, labor repeatedly failed to get their legislation enacted.
‘Quickie’ elections
Since Congress wouldn’t amend the law to eliminate elections, unions persuaded the Obama administration to bypass Congress entirely and fill a majority of NLRB seats with labor activists who would approve pro-union rule changes. But instead of adopting the old card-check process, the pro-union board tried a different approach—union representation elections would still be held, but the NLRB would hold the vote very quickly in order to cut short an employer’s ability to communicate with its workforce.
Since union organizing campaigns frequently begin in secret and can be conducted for months in advance without an employer’s knowledge, unions hope that the ‘quickie’ vote rules will make it difficult for an employer to assess the situation and explain its position to employees.
The proposed rules would cut the election period from an average of 38 days, today, to as little as 10, but no more than 25 days, once the new rules are approved. To shorten the election cycle, the quickie rules (among other things) limit an employer’s ability to raise legitimate legal challenges prior to the election or appeal the election results later on legal grounds. They also require an employer to provide the union with the name, home address, telephone number and email address of each eligible employee voter. (Currently an employer need only provide each employee’s name and address.)
The NLRB will soon consider the quickie vote rule for final approval. The NLRB’s two Republican members have objected that the proposed rule would “improperly shorten the time needed for employees to understand relevant issues, compelling them to vote now, and understand later.”
Practical implications
The National Association of Manufacturers, the U.S. Chamber of Commerce and other business groups will undoubtedly challenge the new rules in court. But it will be years before those appeals are over. In the meantime, employers should anticipate that unions will quickly start using this new tool to expand their bargaining clout.
All employers should prepare now for the possibility of quickie elections and develop an effective communications plan and materials to respond to union organizing efforts. More specifically, employers should:
- Assess whether parts of your workforce are vulnerable to union-organizing activity.
- Establish employee-relations programs and clear channels, now that help employees communicate easily and efficiently with management.
- To make up for the shorter election process, train your managers and supervisors now to recognize early signs of union organizing activity.
- Since employers will have only a few short days to explain to employees why they should vote against the union, make sure your management team understands what they can and can’t say or do before and during a union election campaign, should one begin.
- Work with legal counsel to develop in advance a campaign strategy and appropriate materials that you can use to quickly respond to union organizing efforts, and update your strategy and materials as facts and circumstances change.
Above all, review your corporate policies and procedures to make sure your company is complying with the National Labor Relations Act. The quickie election process is not the only significant rule change being made by the current activist NLRB. An employer can suffer serious consequences if the NLRB determines that its policies could interfere with employee rights under the law, regardless of whether the employer actually enforces those policies during an election. As a result, if a union loses in an election, the NLRB, believe it or not, will cite the existence of an employer’s unlawful policies even if the employer did not follow those unlawful policies as grounds for setting aside the employer’s victory. So make sure your current policies don’t create liabilities for you down the road.
Douglas Darch is a partner in the Chicago office of Baker McKenzie LLP, a large international law firm.
This story was revised July 9, 2014.
