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Union Election Rules Set to Change Tuesday

Posted by Mike Rudman on Apr 9, 2015 1:23:23 PM

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.

picket.smallPresident 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. 

Questions? Register for the free AIM Webinar on accelerated union elections.

NLRB Re-Introduces 'Quickie' Union Election Rule

Posted by Mike Rudman on Feb 10, 2014 8:42:00 AM

The National Labor Relations Board last week resumed its effort to permit accelerated elections long sought by organized labor to limit the ability of employers to respond to union organizing efforts.

NLRBThe NLRB issued a notice of proposed rulemaking Tuesday on an initiative that would curtail employers’ ability to appeal eligibility and other issues prior to a union representation election. A federal court invalidated an earlier NLRB attempt to issue a “quickie election” rule because the agency lacked a quorum when it approved the regulation.

AIM was among several business groups nationally to have brought that court action.

Abbreviated union elections place employers at a disadvantage because most don’t find out about a union campaign until it is well under way- frequently when the union has more than 75 percent of the potential unit employees signed up. Short elections provide insufficient time for a company to combat potential misrepresentations that the union has been able to make without the opportunity for an opposing view.

Among other changes, the proposed rule:

  • Eliminates the current requirement that a union representation vote cannot be held sooner than 25 days after the NLRB’s regional director issues a Direction of Election. 
  • Requires that unions be given employee email addresses and telephone numbers prior to the election. Currently, the union receives a list of eligible voters from the employer prior to the election. The list contains employees' full names and home addresses, but not their email addresses and telephone numbers.

Analysts believe the rule could shrink the average time from union petition to election from the current 38 days to as few as 10 days. The change comes despite the fact that the NLRB has met or exceeded its own goals during the past decade for the time it takes to conduct an election.

Unions have been successful in approximately two-thirds of representation elections during the past two years and that success rate is certain to improve with a compressed election schedule. Unions are also likely to target small employers that were previously uneconomical to organize.

Associated Industries of Massachusetts encourages employers to express their opposition to the proposed rule changes in one of several ways:

  1. Contact your federal representatives and to express your displeasure.
  2. Send your comments on the proposed rulemaking to http://www.regulations.gov. (Search for the proposed rule using Docket ID No. NLRB-2011-0002 and follow the instructions for comments.)
  3. Send your comments to Gary Shinners, Executive Secretary, National Labor Relations Board, 1099 14th Street NW, Washington, DC 20570.

AIM also urges employers to address the conditions that invite unions into your company and focus on making a union unnecessary.

This means:

  • Training supervisors, managers and senior teams to recognize and fix problems before they become prominent features of your company’s culture.
  • Creating a positive work environment that responds to issues and doesn’t ignore them.
  • Dealing with those problem supervisors and managers who undercut your culture.
  • Training your management team at all levels to recognize the behavioral and group changes that occur during a union drive while it is still underground.
  • Fixing what you already know ails your organization.
  • Training you management team, from top to bottom, in what they can and cannot say when discussing unions and employees right to organize.

AIM can provide your organization guidance and training in each of these issues.  Contact Gary MacDonald at 617.488.8348, gmacdonald@aimnet.org for details.

Topics: Employment Law, National Labor Relations Board, Labor

Court Ruling Throws NLRB Decisions into Question

Posted by Mike Rudman on Jan 25, 2013 2:33:00 PM

The United States Court of Appeals for the Washington DC Circuit ruled unanimously today that President Barack Obama did not have the power to make recess appointments to the National Labor Relations Board in January 2012.

National Labor Relations BoardThe ruling in Canning vs. NLRB could invalidate rulings, determinations and rulemaking by the NLRB over the past year because the US Supreme Court has already ruled that a three-member Board must be sitting for such actions to be valid.  As a result of today’s ruling, only one member of the NLRB, Chairman Mark Pearce, was validly appointed and thus the Board lacks a required quorum for action.

The government is likely to appeal the matter to the US Supreme Court.  A similar Supreme Court challenge during the administration of President George W. Bush resulted in an affirmation that the president did in fact, possess recess appointment powers.

While this ruling has the potential to undue many of the NLRB actions and precedents set during the past year, it does not mean employers should be less vigilant or alert to union activity in their workplace.  Unions still represent a powerful force by presenting themselves as an alternative to inattentive or poor management, and exert considerable political influence. 

Business owners and managers must ensure that the conditions that invite union representation do not exist within their enterprises.  These conditions include a lack of respect, supervisory mistreatment, inconsistency in the application of policies, favoritism, threats to job security and changes within the workplace that cause employees to consider the need for either ‘protection’ or someone to speak for them.

Topics: Issues, Employment Law, National Labor Relations Board

Court Halts NLRB 'Quickie' Union Election Rules - For Now

Posted by Mike Rudman on May 16, 2012 9:54:00 AM

A United States District Court issued a judgment Monday invalidating the recent National Labor Relations Board (NLRB) regulations promoting “quickie" union representation elections.  Ruling in favor of the United States Chamber of Commerce and the Coalition for a Democratic Workplace (of which AIM is a member), the court found that the NLRB did not have the required quorum to pass the rule.

NLRBThe Court did not rule on the merits of the rule changes or the NLRB’s ability to promulgate such changes.  It is likely that an appropriate quorum can be established with the NLRB’s current membership and that the new rules will be implemented once again.  Given the current pro-union NLRB majority, it is expected that action will be taken immediately to reestablish these so-called “Ambush Elections” rules.

AIM urges employers to take advantage of this window of opportunity to address the conditions that invite unions into your company and focus on making a union unnecessary.

This means:

  • Training supervisors, managers and senior teams to recognize and fix problems before they become prominent features of your company’s culture.
  • Creating a positive work environment that responds to issues and doesn’t ignore them.
  • Dealing with those problem supervisors and managers who undercut your culture.
  • Training your management team at all levels to recognize the behavioral and group changes that occur during a union drive while it is still underground.
  • Fixing what you already know ails your organization.
  • Training you management team, from top to bottom, in what they can and cannot say when discussing unions and employees right to organize.

AIM can provide your organization guidance and training in each of these issues.  Contact Gary MacDonald at 617.488.8348, gmacdonald@aimnet.org for details.

Topics: Issues, Employment Law, National Labor Relations Board

Recess Appointments Cement Pro-Union Direction of NLRB

Posted by Mike Rudman on Jan 5, 2012 10:59:00 AM

The National Labor Relations Board will apparently remain a flashpoint between employers and unions now that President Barack Obama has made three recess appointments to the NLRB.

National Labor Relations BoardThe appointments infuriated Congressional Republicans and cheered organized labor, which commended the President “for exercising his constitutional authority to ensure that crucially important agencies protecting workers and consumers are not shut down by Republican obstructionism.”

The White House yesterday appointed two Democrats, Richard Griffin, General Counsel for the International Union of Operating Engineers; and Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, and one Republican – Terence Flynn, Chief Counsel to current GOP board member Brian Hayes – to the NLRB.

The three new members will join Hayes and NLRB Chairman Mark Pearce to bring the board to its full, five-member status. The board would otherwise have lost a quorum after the previous recess appointment of union lawyer Craig Becker expired.

Most observers believe the appointments are unlikely to sidetrack the NLRB’s aggressive pro-union agenda. The board has significantly shifted the labor-management playing field in the past year with a series of actions including the filing of a complaint against aircraft maker Boeing for establishing a production facility in South Carolina and a mandate that employers post a union-rights notice in the workplace.

Of major concern to employers is the recent rule change that will both limit an employer’s ability to challenge voter eligibility (among other issues) prior to an election, and facilitate the implementation of ‘quickie elections’ long sought by organized labor. The Board voted in November to remove a paragraph requiring regional directors of the NLRB to wait a minimum of 25 days prior to scheduling an election.

“Make no mistake,” Hayes wrote, “the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

Union lawyer Griffin is expected to side with pro-labor Chairman Pearce, while Flynn will likely vote with Hayes, who has been a lone voice for employers during the past year.

The interesting wild card is Block, who previously worked both on Capitol Hill for the late Senator Edward Kennedy and at the NLRB for the Bush-appointed Chairman Robert Battista from 2003-2006. Experts who follow the NLRB, however, say it is unlikely that President Obama would make a controversial recess appointment of someone who did not support his approach to labor relations.

Adding uncertainty to the process is the possibility that Republicans may mount a legal challenge to the recess appointments. GOP Congressional leaders maintain that they never recessed and have been conducting brief pro-forma sessions throughout December and January.

Senate Minority Leader Mitch McConnell complained that the White House submitted the nominations of Block and Griffin two days before Congress recessed and that neither has gone through as hearing or debate.

"What the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress. This was surely not what the framers had in mind when they required the President to seek the advice and consent of the Senate in making appointments," McConnell said.

Associated Industries of Massachusetts renewed its call for the NLRB to adopt a fair approach to labor relations.

“We continue to be concerned about the direction of the NLRB and its efforts to restrict the ability of employers to work cooperatively with workers to create a productive workplace,” said Sandy Reynolds, Executive Vice President of the AIM Employers Resource Group.

Topics: Issues, Employment Law, National Labor Relations Board

NLRB Approves Limits on Employer Appeals During Union Elections

Posted by Mike Rudman on Nov 30, 2011 3:52:00 PM

The National Labor Relations Board voted 2-to-1 minutes ago to adopt regulations that limit the ability of employers to appeal eligibility and other issues prior to a union representation election.

NLRBThe landmark vote came after Republican NLRB Commissioner Brian E. Hayes decided against resigning from the board in a move that would have deprived the two Democratic NLRB commissioners of the three members needed to issue regulations. Hayes said he decided to remain on the NLRB because “it is not in my nature to be obstructionist.”

He nevertheless blasted what he called “a fundamentally flawed rule that is the product of a fundamentally flawed process.” Hayes said the rule would deprive both employers and workers of the ability to express opinions about collective bargaining prior to a vote on union representation.

NLRB Chair Mark G. Pearce and Craig Becker voted in favor of the regulations, which they characterized as an attempt streamline the union election process by eliminating piecemeal and appeals and making the oversight process more efficient. The vote means that a final rule will now be drafted and posted to the Federal Register.

“This has been the most open and participatory process in the 76 years of the board’s existence,” Pearce said. He noted that the NLRB received more than 65,000 comments on the proposed rules.
The proposal:

  • Allows NLRB hearing officers the authority to limit evidence introduced at a hearing to information relevant to whether a question of representation exists;
  • Eliminates the right of employers to seek NLRB review of a regional director’s pre-election rulings and consolidating all such requests for review after the election takes place;
  • Toughens the requirements for employers to seek special permission to appeal to the NLRB; and
  • Makes discretionary NLRB review of a regional director’s or judge’s disposition of post election disputes.

Hayes pleaded with Pearce and Becker to reconsider their positions, saying that it would “contravene long-standing” board rules for a two-person majority to adopt such a sweeping decision. Hayes warned that pushing through the rule changes before Becker’s recess appointment expires at the end of the year could come back to haunt the commission when the political tables are turned.

Quoting Thomas More in A Man for All Seasons, Hayes said, “I give the devil the benefit of law for my own sake.”

AIM opposes the new regulations. The association submitted written opposition to the NLRB on behalf of Massachusetts employers.

Topics: Issues, Employment Law, Organized Labor, National Labor Relations Board

NLRB Boycott Threat Leaves New Union Election Rules Up in the Air

Posted by Mike Rudman on Nov 30, 2011 9:50:00 AM

Proposed regulations that would shorten the time employers have to respond to union organizing campaigns face an unprecedented showdown vote today amid reports that the lone Republican on the National Labor Relations Board (NLRB) may boycott the session.

NLRBThe NLRB has scheduled a vote for this afternoon at 2:30 p.m. on a provision of the regulations that would deprive employers of the ability to seek court review of issues prior to a union election. NLRB Chairman Mark G. Pearce said yesterday that the board will not consider other parts of the rule that would speed up the elections and share workers’ contact information with unions.

The question is whether the NLRB will have enough commissioners present to vote on a binding decision.

Republican commissioner Brian E. Hayes threatened last week to skip today’s board meeting to deprive the two Democratic NLRB commissioners of the three members the U.S. Supreme Court has said the NLRB needs to issue regulations.

Hayes complained in a letter to Congress last week that the two Democrats on the board had not told him exactly what changes they planned to make and had not adequately shared with him the 65,000 public comments the board received.  Hayes said that it would “contravene long-standing” board rules for a two-person majority to adopt such a sweeping decision.

“They cannot, in my view, simply be cast aside in pursuit of a singular policy agenda without doing irreparable harm to the board’s legitimacy,” he wrote.

Pearce and fellow Democratic commissioner Craig Becker are pushing for a vote on the accelerated elections proposal before Becker’s recess appointment expires at the end of the year.

Even though the Chairman’s public pronouncement does not include a provision for “quickie” elections, AIM  continues to oppose the new regulations. The association submitted written opposition to the NLRB on behalf of Massachusetts employers.

Abbreviated union elections place employers at a disadvantage because most don’t find out about a union campaign until it is well under way- frequently when the union has more than 75 percent of the potential unit employees signed up. Ten-day elections are insufficient time for a company to combat the promises, lies and misrepresentations that the union has been able to make without the opportunity for an employer to present an opposing view.

Organized labor wants shortened elections desperately since first-time union elections produce contracts only about 56 percent of the time. Unions are often unable to bargain to an agreement and lose their majority representation assumption as employees express “buyer’s remorse.”

The proposed rules seriously impact how a bargaining unit is formed, remove the employer’s ability to challenge pre-election, delay questions regarding the unit until after the election and provide hearing officers with authority to determine if an election should be held despite the existence of challenges.

Legal and political experts disagree about whether Hayes can single-handedly stop the accelerated union election rules. Some maintain that the NLRB cannot issue rules based on the votes of only two commissioners, while others maintain that the board may move ahead with today’s vote.

AIM will update members on the results of this afternoon’s session.

Topics: Issues, Organized Labor, National Labor Relations Board

NLRB Postpones Implementation of Union Notification Rule

Posted by Mike Rudman on Oct 7, 2011 11:14:00 AM

The National Labor Relations Board (NLRB) has postponed by 10 weeks the implementation of a new rule that will require employers to notify workers of their right to join a union.

Employee notification ruleThe NLRB said the postponement is intended to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The rule was scheduled to take effect on November 14, but will now become policy on January 31, 2012.

“The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made,” the agency said in a statement on its Web site.

The rule will require private-sector employers whose workplaces fall under the National Labor Relations Act to post an employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an Internet or Intranet site will be required to post the union notice on those sites.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Associated Industries of Massachusetts has opposed the notification rule, which has drawn legal challenges from groups such as the National Right to Work Legal Defense Foundation, the National Federation of Independent Business and the National Association of Manufacturers. Those groups claimed this week that their court challenges are the real reason NLRB delayed the rule.

The rule would treat an employer's failure to post the statement of rights under the National Labor Relations Act as an unfair labor practice. The threat of an unfair labor practice charge is particularly troubling for employers since two members of the NLRB advocate using a 1969 court decision to resolve those charges by granting a union the right to represent workers without an election.

“AIM member employers are not pleased by the prospect of being forced to post an invitation to workers to join a union,” said Brian Gilmore, Executive Vice President of Public Affairs at AIM.

Topics: Employment Law, Organized Labor, National Labor Relations Board

Proposed Rules Would Limit Advice to Employers on Union Issues

Posted by Mike Rudman on Sep 26, 2011 11:28:00 AM

The U.S. Department of Labor has proposed rules that would force employers to disclose detailed information about any lawyer, association or consultant that helps the company communicate with workers about labor-union issues.

Advice ExemptionAssociated Industries of Massachusetts strongly objected to the proposed rules in comments filed with the Labor Department last week. AIM believes the new rules are part of a radical attempt by the Obama Administration to shift the balance of private-sector labor relations, in defiance of the neutral policies established by Congress over many decades.

“The proposed rules will interfere impermissibly with the attorney-client relationship, will interfere with the right of trade associations to communicate with their employer members, and will interfere with the ability of employers to obtain much needed advice from their peers, their lawyers and experienced labor relations consultants,” AIM and scores of other business groups said in comments filed last week by the Coalition for a Democratic Workplace.

Sandy Reynolds, Executive Vice President of the AIM Employer’s Resource Group, said the rule change would be particularly damaging for small companies, which rely on outside advice because they cannot afford to keep in-house labor relations consultants.

“AIM regularly helps Massachusetts employers create respectful work environments that make labor unions unnecessary.  The Department of Labor rules would discourage employers from obtaining that advice by creating a mountain of bureaucratic disclosure paperwork,” Reynolds said.

The Labor-Management Reporting and Disclosure Act (LMRDA) has for 50 years exempted from disclosure advice that an employer may receive from an outside consultant about communicating with employees about union issues. The proposed rule change would narrow the definition of “advice” and require public disclosure if the consultant provides material or communications, or engages in actions on behalf of an employer “that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively.”

So when a consultant prepares or provides a persuasive script, letter, videotape, or other material or communication, including electronic and digital media for use by an employer in communicating with employees, the “advice” exemption does not apply and the duty to report is triggered. Training or directing supervisors and other management representatives on labor matters would also require disclosure.

AIM believes the responsibility to make such significant changes to the law rests with Congress rather than the Department of Labor. The association also believes that the rule change, combined with moves by the National Labor Relations Board to restrict employer communications during union elections, represents a thinly veiled attempt by the administration to circumvent the will of Congress and implement a “back door” version of the failed Employee Free Choice Act.

Topics: U.S. Department of Labor, U.S. Congress, Organized Labor

NLRB Will Force Employers to Notify Workers of Union Rights

Posted by Mike Rudman on Aug 25, 2011 8:47:00 PM

The National Labor Relations Board announced Thursday that it has issued a "final rule" that will require employers to notify workers of their right to join a union.

NLRB Union Notifcation RulePrivate-sector employers whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an Internet or Intranet site will be required to post the union notice on those sites. Copies of the notice will be available from the NLRB's regional offices, and it may also be downloaded from the NLRB Web site.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Associated Industries of Massachusetts opposes the notification rule.

“AIM member employers are not pleased by the prospect of being forced to post an invitation to workers to join a union,” said Brian Gilmore, Executive Vice President of Public Affairs at AIM.

“The rule provides no value to companies or their hard-working employees. It merely creates an opportunity for organized labor to create stress in a healthy employer/employee relationship.”

NLRB Chairman Wilma B. Liebman and members Mark Gaston Pearce and Craig Becker approved the final rule, with member Brian Hayes dissenting. The rule will be published in the Federal Register on Friday will take effect 75 days later.

The NLRB says it modified several elements of the proposed rule after receiving more than 7,000 comments. Employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications, even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages.

The rule would treat an employer's failure to post the statement of rights under the National Labor Relations Act as an unfair labor practice. The threat of an unfair labor practice charge is particularly troubling for employers since two members of the NLRB advocate using a 1969 court decision to resolve those charges by granting a union the right to represent workers without an election.

The possibility of the NLRB allowing a union to represent workers without an election  is based upon the Gissel Packing Company decision in which the U.S. Supreme Court  approved the use of authorization cards as a measure of union sentiment for the purpose of imposing a bargaining order as remedy for an employer’s unfair labor practices. While the Court also noted that authorization cards are “admittedly inferior to the election process...,”  both Liebman and Becker have stated that Giselle should be the rule, not the exception.

Topics: Employment Law, Organized Labor, National Labor Relations Board, NLRB

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