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What The Labor Board’s New Rules Mean For Your Company

The NLRB’s new union election rules shorten a company’s chances for convincing employees that there’s no need for a union — which could be preemptively avoided by better labor-management communication.

Q1 2015
American business will face new problems avoiding unions because the National Labor Relations Board (NLRB) has finally issued its “quickie election” rules governing representation elections. These rules cut the time between the filing of an election petition and the election itself to 14 to 21 days from today's median of 38 days. This means America’s manufacturers, wholesalers, and retailers will have little time to campaign to persuade their employees to vote against unionization.

Here are the most important new rules, their practical results, and what astute owners are doing to avoid union elections entirely:

Rule: Management must give the NLRB the names, job titles, shifts, phone numbers, and home and email addresses of workers within two days of notification of a union-organizing petition.

Practical Results: Since most elections occur in small companies — the median size of voting units in elections is now about 25 employees — the owner faces an almost impossible set of tasks.

The first requires a small company’s human resources department — sometimes only a clerk who just does the weekly payroll — to scramble to put together the required list. Personnel files sometimes do not contain accurate home addresses because workers often move and don’t report their new ones. Of course, failure to give the NLRB an accurate list of addresses can result in an unfair labor charge.
Sadly, many executives remain in the dark about employees' sentiments until a union petition is filed. Perceptions of fair treatment by employers, as seen by the workers themselves, must be monitored accurately by the company if it wishes to remain union-free.
This early list gives organizers more time to contact more employees, make home visits, and email them to further their unionizing efforts. Today, it is unclear whether the NLRB wants workers’ home or work email addresses. If the latter, that raises new issues due to the NLRB’s new efforts to restrict companies from policing what workers say on their internal email systems.

Rule: The second task for management is to file with the local NLRB office a complete “statement of position” within seven days of the filing of a petition. A “statement of position” is the company’s take on all questions about the election. It covers all potential issues about the election (appropriate unit, who is or isn’t a supervisor under NLRB rules, who should vote, date and time of the election, etc.).

Practical Results: Since the small business owner often wears multiple hats and has no internal resources with labor-law expertise, and doesn’t know what a “statement of position” is, he often phones his own personal attorney for help. The attorney — whose bread-and-butter consists of wills, title searches, and home closings — may have little experience in labor matters. Finding an experienced labor lawyer may take another day or two. Then, the owner and labor lawyer may meet to discuss the owner’s situation, to ask themselves why workers might want a union, to brainstorm about what to do, and then to compose a “statement of position.” Obviously, this does not happen instantaneously…but the NLRB’s clock is ticking.
Expand Union victory rate by year over the last decade.Source: National Labor Relations Board Annual Report.
Close Union victory rate by year over the last decade.Source: National Labor Relations Board Annual Report.
Union victory rate by year over the last decade.Source: National Labor Relations Board Annual Report.
Most knowledgeable attorneys are conservative and want to protect their bewildered clients. So the lawyers no doubt will file a lengthy statement raising every possible question imaginable. They know that under the NLRB’s new rules, if a question or issue is not raised in the initial statement, it cannot be raised in any later proceedings. Rather than speeding elections, this delays them, as hearing officers sort through all the questions the attorneys have raised. This takes the NLRB’s hearing officer time and effort. If anything, this will delay elections.

While all of this is going on, the worried owner must meet production schedules, handle customer orders and complaints, and deal with his normal busy work…and the NLRB’s clock is still ticking.

Rule: All questions about the voting unit —who is in it and is eligible to vote — will be deferred until after the election. Ballots will be counted before those questions are answered. Only those questions that affect more than 20 percent of the employees who are voting will be considered.

Practical Results: Quite often, company presidents ask supervisors to help in their election campaigns, distributing handouts and asking workers to back their company by voting “no union.” However, the company risks another unfair labor practice charge if it asks a person to distribute anti-union handouts and the NLRB then rules that person is not a supervisor. Thus, nervous employers will tend to avoid using supervisors to campaign, hobbling their efforts to win their election.

Second, workers often ask just who will be in the union? Will it be just their department or shift, or does it include office or warehouse staff as well? To many workers, that is a key issue. Without knowing who their fellow union members might be, it’s like buying a pig in a poke.

Rule: The hearing officer will be required to rule on pertinent questions immediately and set a rapid date for an election, often within 10 days to two weeks. That gives a company little time to campaign and give its side of the story.
Expand Union victory rate by month over the last 12 months.Source: National Labor Relations Board Annual Report.
Close Union victory rate by month over the last 12 months.Source: National Labor Relations Board Annual Report.
Union victory rate by month over the last 12 months. Source: National Labor Relations Board Annual Report.
Practical Results: Since only about 7 percent of private-sector employees are union members, relatively few know that unions have a downside as well as an upside. There are strikes, union dues and assessments, and fines. Wages and benefits can go up, down, or stay the same in negotiations. Just as unions can call strikes to pressure companies to meet their demands, companies can lock out employees to pressure them to agree to company demands. Strikers can be permanently replaced in economic strikes. Obviously, these topics are not at the top of union organizers’ lists when they talk to employees about voting for a union.

Employees have the right to know the full story when they are voting. It takes more than a week or so to tell the full story of the pluses and minuses of unions and answer the questions workers invariably have. But with the compressed timetable the NLRB now has set for elections, companies will have little time to inform their workers about all of the facts before they vote.

Rule: A company cannot lose an election that was not held. Union organizers rarely cold call, going from door to door seeking likely companies to unionize. Almost invariably, it is the employees who call union organizers because they feel the need for somebody to speak to management on their behalf, and to protect them against management abuses.

Practical Results: The best way for a business to avoid the certain expense and disruption of an election and the potential cost of a union — with higher wages (possible), and restrictive work rules and costly grievances (guaranteed) — is to treat employees fairly, openly, and honestly so they don’t feel they need for a union in the first place. But how?

Supervisory Behavior and Employee Attitudes
Sadly, many executives remain in the dark about employees' sentiments until a union petition is filed. Perceptions of fair treatment by employers, as seen by the workers themselves, must be monitored accurately by the company if it wishes to remain union-free. Perhaps that explains why unions consistently win about two out of three representation elections.

The key issues causing workers to seek unions revolve around perceptions of favoritism and unfair treatment, often by first-line supervisors. Since most employees see their immediate bosses as “the company,” disrespect, unfair treatment, and supervisory favoritism are seen by workers as being the entire company’s attitude.

Executives in most companies rely upon subordinates to report on morale. Not surprisingly, few supervisors or managers report the petty abuses or favoritism they themselves practice. Standing alone, one or two abusive incidents may not be important. But as they accumulate, they impact employee attitudes severely.

Obviously, training supervisors how to listen and respond to employee concerns is important. Many employers use “canned” training programs taken from the Internet. Most deal with generalities, not an individual company's specifics. Asking a knowledgeable trainer to develop training tailored to the specific problems of a specific company takes a little time, but the results are worth it. Then, evaluating supervisors not only on their production but also on their “people” skills reinforces the training.

Executives often use fast, computerized attitude surveys, thinking they will uncover workers' concerns. These don’t work. For example, workers may be asked to score various factors on a 1-to-10 scale. But these numeric scores do little to tell a company’s executives why employees feel as they do, or what remedial efforts should be taken.

Only a handful of executives take the time to obtain unfiltered views of their employees’ attitudes by having audits conducted by skilled outsiders conducting face-to-face interviews in carefully structured groups. Outsiders are especially effective because workers are reluctant to speak openly to management for fear of retribution. However, employee concerns that lead to unionization cannot be handled until they are uncovered.

Marrying Labor and Management Interests
Dealing with the employee concerns quickly is important. Interestingly enough, many of them revolve around their inability to do their jobs as well as they would like. Inadequate tools (antiquated computers, poorly maintained equipment, lack of tooling, etc.), poor working conditions (lighting, ventilation, etc.), and faulty work scheduling all impede productivity and frustrate workers. Since employees have many practical ideas about improving productivity, it pays to train supervisors to listen to them in a systematic way and respond. When staffers in manufacturing concerns, warehouses, offices, or retail establishments see that management cares about productivity and quality, they will too. Additionally, providing incentives to reward all workers for their better overall performance is a powerful tool to reinforce labor-management bonds. Employees see that their interests and those of management in better performance — and productivity — are identical.

When these efforts are done effectively, companies won’t have to worry about unions. When are you going to start?

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