For the first time in 8½ years, reason may return to the national labor policy arena.
The new Congress has proposed legislative actions to reverse some of the draconian and shamefully biased positions of the Obama administration. There are three measures on the table:
- The Workforce Democracy and Fairness Act would strike down the 2011 NLRB’s Specialty Healthcare decision, which permitted unions to “carve out” small units of employees for the purposes of union organizing. Statistically, it is unchallengeable that unions win a higher percentage of elections as the unit of voters declines in numbers. One of the reasons for that is that in a smaller unit, e.g., skilled maintenance, makeup counter employees (in a retail operation), and nurses aides in healthcare, it can easily become galvanized over a single issue like a bad supervisor. Having an election in a unit such as these facilitates the union’s ability to win. The Obama Board’s intention was obvious. This bill proposes that perennially accepted appropriate unit tests would be reapplied.
- Adios Quickie Elections! The Employee Privacy Protection Act would eliminate the more intrusive and inappropriate portions of the Board’s requirement regarding providing employee private information (cell phone numbers, personal email addresses, home telephone numbers) to unions at the outset of an election campaign. The timetables may stay in place, but without the ability to text employees and send personal emails, the union’s effectiveness in a campaign will be greatly reduced. The sub rosa aspects of the quickie election rule that made it easy for unions to communicate under the radar could put employers at a great disadvantage.
- The best proposed legislation, the Employee Rights Act, would for the first time require elections to be decided by a “majority” of the employees in the affected unit as is actually required under the National Labor Relations Act1. Since 1935 when the Act passed, the NLRB has always decided the outcome of elections by a “majority of valid cast” for or against the union. Apathy has always been a killer for employers and election campaigns mainly because the union seems to be far more able to turn out its voters than does the employer. The true majority tally was in place for decades with the National Mediation Board, which supervises the Railway Labor Act. Obama’s minions did away with that process and converted it to the heretofore false majority math of their brethren at the NLRB.
While these are positive developments for employers (assuming they can survive the legislative meat-grinder), they will only be helpful when an employer has reached the point of its employees having chosen to vote in a representation election. It is always preferable to never get to the point where an election is imminent. A full understanding of the employer’s vulnerability particularly as it deals with issue assessment and remediation is always the most important step to remaining union-free.
Please accept our offer to have a complimentary union-free checklist evaluated for your organization.
William R. Adams, Ph.D.
President & CEO
Adams, Nash, Haskell & Sheridan
1 Sec. 9 [§ 159.] (a) [Exclusive representatives; employees’ adjustment of grievances directly with employer] Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: