The Draconian new election rule is potentially damaging to employers and can without question impact the work lives of employees, but its mere implementation will not prove to be as disastrous as many have predicted.
The inescapable positive realities:
- Unions still have to organize, by convincing employees that they can add value to their work lives, a skill that has fallen precipitously over the past 20 years.
- The NLRB is one of the more incompetent Federal agencies. Time will tell whether they can conduct expedited elections in the most feared scenario … 13 days from petition. NLRB General Counsel, Richard Griffin, has even admitted as much.
- The next President, if he/she is so inclined, can reverse this edict.
- The court challenges remain; either at this stage or after, there is a victim of this administrative crime. (It is most likely that the best plaintiff on this issue is an employee, et. al., who claims to be disadvantaged by being forced into a union as a result of the rule change.)
The new negatives:
- Employers are now required to post the very pro-union Notice to Employees and to email an electronic version.
- A list of names and job information must be submitted. This will give unions more information at the outset than they had previously.
- With the tightly constrained representation hearing directives, employers will be put in peril on issues like supervisory status in that, without NLRB determination prior to an election, they won’t know who a true supervisor is until after the fact. The Board’s indication is that there will be no issue of supervisory status litigated unless the employer in its Statement of Position indicates that at least 20% of the petitioned-for unit is supervisory personnel. This creates a path with many land mines imbedded. An employer could unintentionally interrogate and force a supervisor to campaign on its behalf only to find out post-election that the NLRB believed the supervisor is in fact a covered employee.The other major problem related to the deferral of legitimate issues until after the election is conducted relates to the treatment of objections. The NLRB traditionally looks at the margin of victory in determining whether or not an election should be set aside. If the hearing officer restricts the employer’s effort to put forth its case and a bad unit is composed, the outcome will be influenced in favor of the union, and the resulting margin of victory will dissuade the Board from ordering a second election.The provision of employees’ personal information (personal emails and telephone numbers) can only be provided if the employer is in possession of that information. If you don’t have it, you can’t provide it.
In summary, there is much to be concerned about, but even under the most expeditious processing of a representation petition, an employer can prevail. Unions are not the cure all to issues and discomfort in the workplace. An aggressive campaign about the realities and danger of the collective bargaining process will still be compelling to employees who are considering voting for a union.
Please contact us for more information.
William R. Adams, Ph.D.
President & CEO
Adams, Nash, Haskell & Sheridan