As 2011 closed, the National Labor Relations Board took major actions affecting the vast majority of all U.S. employers.
Following the 2008 elections, the centerpiece of organized labor’s legislative agenda was the so-called “Employee Free Choice Act,” which would have dispensed with secret ballot elections. However, once a new Congress was elected in 2010, the EFCA had no chance of passing. Organized labor then sidestepped Congress and turned to the NLRB for more union-friendly election rules. The NLRB’s pro-union agenda became more urgent by the end of 2011, when the President’s recess appointment of Board member Becker expired, leaving the Board with just two (of five) members and no quorum. Congressional opposition to new Board appointments is certain.
The Board’s pro-union majority made the most of its final days in 2011. A new expedited election rule is a major consolation prize for organized labor, even though the rule preserves the secret ballots that the EFCA would have swept away. The NLRB also reaffirmed its pro-labor poster mandate—which employers have decried as both unlawful and unfair. The NLRB has set April 30, 2012 as the effective date for these new rules, which are discussed in more detail below.
I. Election Rule
On December 22, 2011 the NLRB adopted a new election rule that will substantially curtail campaign periods and potentially neutralize a company’s most effective campaigners—its supervisors. With the new rule, the NLRB aims to shorten the period for representation elections from the current average of 38 days. Currently, 95% of all elections are held within 56 days. The NLRB intends to cut that time by at least half. The NLRB’s December 22 action adopts the heart of the agency’s June 21, 2011 Notice of Rulemaking, a controversial proposal that generated over 65,000 comments.
Under current NLRB rules, the Regional Director conducts a full representation hearing to decide issues related to proposed bargaining unit composition and eligibility, with post-hearing briefs allowed 7 days later. Once a decision is issued, either side can appeal to the full Board, which has 25 days to review the decision before an election may be conducted.
The new Election Rule provides:
- The hearing officer may limit the pre-election hearing to a determination of whether there exists a “question of representation” to be resolved by an election and may exclude important issues related to unit composition and eligibility.
- The hearing officer may dispense with post-hearing briefs and cause the NLRB to direct an election immediately.
- Pre-election and post-election appeals are now consolidated into a single post-election appeal procedure.
- Elections will not be delayed to permit time for a pre-election appeal to the Board.
- Any request for special permission to appeal from a pre-election decision may be granted only in extraordinary circumstances.
- The full Board’s review of post-election appeals is “discretionary” and limited to cases that present a “serious issue for review.”
The new “snap election” rule is challenging for employers because it threatens to substantially reduce the time that employers need to educate employees on the benefits of a non-union workplace. Representation petitions follow a period in which a union has worked directly – and usually quietly - with employees in the proposed unit to gain authorization cards. At this point, employees usually have heard only “one side of the story.” The petition often comes as a surprise to the employer, which must then mount its own educational campaign and provide “the other side of the story.” This educational process takes time to implement and, if there is no meaningful campaign period, employees will not have information sufficient to make an informed decision.
The new rule also threatens to neutralize the vital effectiveness of supervisors in union elections by allowing organized labor to include them in a proposed bargaining unit without an effective challenge. Supervisors are the company’s critical link in a campaign, and the National Labor Relations Act prohibits including supervisors in a bargaining unit. Many union elections, however, involve debates between labor and management over whether a particular employee is a statutory supervisor or not. The NLRB’s new election rule would permit labor to include a supervisory employee in the bargaining unit, and the company’s challenge to that designation would not be heard until after the election. In the meantime, the company could be stymied from using the supervisor as an ally in the union election.
In sum, the NLRB’s new election rule makes the prospect of an “ambush” union election much more likely. Such an election would afford an employer no meaningful time to share truthful information about the disadvantages of unionization or the real track record of the union. This means that employers must be more proactive than ever in responding to the threat of unionization – an employer who procrastinates until after it receives a representation petition will face difficult odds trying to reverse the union’s momentum on short notice of an NLRB-run election.
II. Notice of Employee Rights Rule
On August 30, 2011, the NLRB issued its Final Rule requiring the posting of “Notice of Employee Rights under the National Labor Relations Act.” (A copy of the Notice may be obtained from the NLRB’s website at www.nlrb.gov.) On December 23, 2011, as a result of lawsuits filed in Washington by the US Chamber of Commerce and National Association of Manufacturers and in South Carolina by the state Chamber of Commerce, the NLRB postponed the effective date of the new Notice Rule until April 30, 2012.
Lawsuits by the business community contend that the prescribed Notice is not neutral and violates free speech rights guaranteed by the First Amendment. Furthermore, unlike virtually every other major employment statute, there is no provision in the National Labor Relations Act authorizing the Notice. Thus, employers argue, the Notice exceeds the agency’s power.
Notice Content. Unless the Courts enjoin implementation of the Notice Rule, beginning April 30, 2012, all employers covered by the Act must post the new Notice, advising employees of their rights to:
- organize a union to negotiate with their employer about wages, hours and working conditions;
- form, join or assist a union;
- bargain collectively with their employer;
- discuss wages and benefits and other terms of conditions of employment or union organizing with coworkers or a union;
- strike or picket, depending on the purpose or means of the strike or the picketing; and
- choose not to do any of these activities, including joining or remaining a member of a union.
Posting mechanics. The Notice must be posted in a conspicuous place wherever the employer customarily posts employee rules and similar notices, including the company’s intranet site if it is used for like purposes. There is no separate requirement that the Notice be emailed to employees. If 20% or more of employees speak a foreign language and are not proficient in English, then the Notice must be translated.
Penalties. An employer’s failure to post the Notice could be a violation of Section 8(a)(1) of the Act. The NLRB claims, however, that it would not bring a separate enforcement action against an employer for such an action, but would instead “remind” the employer to post the Notice. More significant consequences for a failure to post could be a tolling of the 6-month statute of limitations for filing unfair labor practice charges and could be used as evidence of unlawful motive in ULP cases if the failure to post the Notice was “knowing and willful.”
III. What Should Employers Do Now?
Employers should take a number of steps now to ensure that they are in the best position to resist union organizing activity:
1. Encourage Open Communication. This point is basic, but almost universal - unions are most often formed in workplaces where employees are unhappy and do not believe that their voices are heard. In order to make a workplace less susceptible to unionization, an employer should encourage open and honest communication among all of its employees. Providing all employees with an outlet to voice their complaints, and addressing those complaints in a fair and reasonable manner, will go a long way toward maintaining a union-free environment. Employers should strive to create a workplace of choice, where employees want to work.
2. Ensure Policies are Current and Enforced. Employers should ensure that they have a non-solicitation policy that applies to all outside solicitations and that this policy is consistently enforced. Without such a policy, union organizers may have more access to the workplace than the employer intends. In addition, employers should consider a “business use only” email policy that restricts the use of work email for personal purposes. As with a non-solicitation policy, a “business use only” email policy will only be effective against union organization activity if it is consistently enforced against other non-business solicitations. Such policies will withstand claims of anti-union animus and selective enforcement only if they are adopted before a union organizing campaign is underway.
3. Understand New Social Media and Rules. Today’s union campaigns rarely involve union and company leaders standing on competing soapboxes. Modern campaigns can “go quiet,” with union proponents acting largely invisibly and using various social media to send word out, identify and exacerbate campaign issues, and garner support. This development presents unique challenges to employers involving access and appropriate responses to the use of social media.
4. Conduct Labor Training. If an employer believes that its workplace could be a target for unionization, the company should train supervisors and managers before receiving concrete evidence of union activity. Strong and thoughtful managers are the key to any effort to avoid or resist union organizing activity. Training should educate supervision on the “do’s and don’ts” of what they can and cannot say if they hear about union activity; should empower them to respond to misinformation; should encourage supervisors who deal directly with lower-level employees to communicate with upper management if they hear of union activity; and should provide an opportunity to ensure that management is listening and responding to employee concerns. Too often, management personnel hold back in response to union issues out of fear that they will say or do the wrong thing and commit unfair labor practices. Especially with the prospect of “ambush” elections, management personnel need to feel confident discussing – at any time - what unions do and do not offer to the company’s employees.