The ground rules for union activity are about to shift dramatically as new federal rules compressing the time frame for representation elections take effect Tuesday.
President Barack Obama last week vetoed a last-ditch effort by Congress to head off the so-called “ambush election” rules, setting the stage for the most significant change in years to the process by which employees decide whether or not to vote for a union. The changes come as the success rate for unions in representation elections has climbed to 69 percent.
That rate is likely to climb as employers get limited time to present the reasons why employees should not vote to join the union in an election supervised by the National Labor Relations Board.
The new rules also require employers to provide personal contact information and email addresses to the union at the beginning of the formal election process.
“Employers who are currently non-union and wish to remain that way now face a reduced amount of time to educate employees and to express the employer point of view on union representation,” said Gary MacDonald, Executive Vice President of the Employers Resource Group at Associated Industries of Massachusetts.
“The bottom line is that employers must adopt a preventative, rather than reactive approach. That means employing best management practices and creating the kind of environment in which workers are not interested in joining a union.”
The rule on expedited union elections has been sought for years by organized labor to limit the ability of companies to respond to organizing efforts. The NLRB first proposed the change in 2011, but the U.S. Court of Appeals for the D.C. Circuit struck it down over a lack of quorum in a case in which Associated Industries of Massachusetts (AIM) participated. The board re-introduced the rule in February 2014.
The measure eliminates a previously-required 25-day period between the time an election is ordered and the election itself and curtails employers’ ability to appeal eligibility and other issues prior to a union representation election. New NLRB rules do not specify how quickly elections must be held, but two NLRB commissioners stated in a recent dissent: “The Final Rule is to conduct elections ‘sooner’ than under current practices. How much sooner is not disclosed. There is no minimum time for the pre-election campaign. Regional Directors (of the NLRB) are to schedule the election ‘at the earliest date practicable.’ ”
House Speaker John Boehner, R-Ohio, criticized Obama's veto of the Congressional resolution.
"The NLRB's ambush election rule is an assault on the rights and privacy protections of American workers," Boehner said. "With his veto, the president has once again put the interests of his political allies ahead of the small-business owners and hardworking Americans who create jobs and build a stronger economy."
There are several steps employers can take right now to reduce the likelihood of a union campaign:
- Assess your organization’s vulnerability to a union;
- Train your supervisors on the ‘real’ issues that bring in a union – it’s almost always about respect, consistency and fair treatment;
- Get professional help in assessing and preparing for the possibility of a union drive – waiting until the campaign starts will be too late;
- Assess and benchmark your compensation program to ensure that it reflects where your company wants to be in the labor market.