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Cost of Unionization
The Reality Of Shortened Union Elections, And What Employers Should Do Now
On June 21, the National Labor Relations Board announced the publication of an official Notice of Proposed Rulemaking in the Federal Register. While there were several components of the rule, the key takeaway for union-free employers is the shortened timeframe from when a union files a petition for election and the date of that election.
A Short History of a Self-Destructing Bill
As a presidential candidate, Barack Obama made a number of promises to organized labor; specifically including the Employee Free Choice Act. This legislation, which fell apart in the end, would have greatly altered the union election process in favor of organized labor. It would have sped up the collective bargaining process and enforced binding arbitration, substantially increased penalties on employers who violate labor law (but not on unions), and, most important to organized labor's legislative agenda, the Employee Free Choice Act would have certified a union after a majority of the bargaining unit had signed authorization cards - rather than require a secret ballot election.
After pouring hundreds of millions of dollars into Obama's campaign, as well as those of Democrats in the House and Senate, unions thought the passage of this bill was imminent. In both chambers of Congress, Democrats had overwhelming majorities. Democrats even reached a filibuster-proof 60 members in the Senate in mid-2009. However, business groups and constituents were able to convince several moderate Democrats not to support the legislation, and the bill began to fall apart, piece by piece. At the same time, President Obama focused his energy and political capital on healthcare reform, as the U.S. economy continued to sputter.
When a 2010 special election brought another Republican into the Senate, (Scott Brown- MA), organized labor's hope of passing the 'true' EFCA died. EFCA supporters began rallying around compromise legislation that included pieces of EFCA such as mandatory access to workers for unions and shortened, or 'quickie,' elections.
To the Clout
But compromise legislation never came to fruition, and all hopes of anything resembling EFCA died when Republicans won control of the House and picked up enough seats in the Senate to block legislation (should the party remain unified).
Looking ahead to his 2012 reelection campaign, President Obama began focusing on administrative actions that favored the unions but didn't require legislative approval. The easiest inroad was to address the makeup of the five-member National Labor Relations Board. Relying on a temporary recess appointment for Craig Becker, and for Lafe Solomon to serve as general counsel, the President gave Democrats (and unions) a 3-1 advantage on the Board. Recess appointments or not, the pro-union majority made their presence felt. And their most significant decision to date will help unions catch employers and employees uninformed and unprepared, increasing the number of representation elections won by unions.
The Rule
Currently, union elections are typically held about 42 days after a petition is filed. In 2010, more than 95 percent of all union elections were held within 56 days of a petition.
Under the proposed rule, there are not a set number of days on when the election should take place. Brian Hayes, the lone Republican on the NLRB, estimated that the new rules would allow elections to take place within 10 to 21 days following the petition's filing. Others have made similar predictions.
In supporting their decision to change the rule, the majority said this:
The Board believes that the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation. The proposed amendments would simplify representation-case procedures and render them more transparent and uniform across regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors' pre- and post-election determinations into a single, post-election request. The proposed amendments would allow the Board to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret ballot election."
Hayes offered this dissent:
The Board and General Counsel are consistently meeting their publicly-stated performance goals under the current representation election process, providing an expeditious and fair resolution to parties in the vast majority of cases, less than 10 percent of which involve contested preelection issues. Without any attempt to identify particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious preelection process and a more limited postelection process that tilts heavily against employers' rights to engage in legitimate free speech and to petition the government for redress…The majority acts in apparent furtherance of the interests of a narrow constituency, and at the great expense of undermining public trust in the fairness of Board elections."
The Fallout
Like many opinions we have seen from this board, this decision ignited a firestorm within business groups and labor, staking out their traditional positions.
Randy Johnson, senior vice president of labor, immigration, and employee benefits at the Chamber of Commerce, said this in a prepared statement, "When organized labor failed to pass its top priority, the card check bill, we knew it was only a matter of time before the administration used the regulatory process to tilt the playing field in organized labor's favor during union campaigns. The proposed rule by the NLRB is a blatant attempt to give unions the upper hand by limiting the ability of employers to exercise their free speech rights."
Predictably, SEIU President Mary Kay Henry lauded the new rule: "In just the first six months of this year, we have witnessed unprecedented assaults on workers' rights in states across the country. Now, the NLRB is taking a positive step for workers who want to exercise their fundamental right to decide for themselves whether to form a union. It's time to restore some measure of balance and fairness to the system, starting with making sure workers have the right to vote whether to form a union without unnecessary delays."
In an editorial, the Wall Street Journal called the rule a payback for unions who have seen their membership decrease on an almost-yearly basis: "The push for 'quickie' elections is a sign of labor desperation. The percentage of private (sector) workers in unions last year dropped to 6.9 percent, the lowest rate in a century. Labor asserts that 'unfair labor practices'—including companies that 'intimidate' workers during 'long' union-election campaigns—are a cause of this decline. But the current election timeframe is roughly what it was in the 1950s, when some 35 percent of private workers were unionized. Unions have lost members because fewer modern workers want to join unions."
The reality will become, under the proposed rule, that union organizers can conduct 'underground' campaigns for months—or even years—without the employer knowing about it; something that is easily possible utilizing online networking where traditional, more visible, organizing tactics are not necessary.
What Employers Can Do
This shortened election scheme is modeled after Canadian labor law, where a number of provinces hold elections within 5-10 days of the petition filing. John Mortimer, President of the Canadian LabourWatch Association, and an expert on Canadian labor law, wrote an essay on the topic of expedited elections recently, and offered this assessment:
"(In a shorter election timeframe) Employers don't have enough time to question union claims, openly debate the issues, hear from employers, clarify the facts or effectively express their concerns to each other. Similarly, employers have a very limited time frame to respond to union claims and provide employees with accurate, balanced information."
Mortimer concluded by saying that "expedited elections will require that employers be proactive in educating managers and employees and in their communications efforts."
Because of this new reality, and the necessary measures an employer must now take, Atlanta-based employee communications company Projections offered some guidance on connecting with employees no matter what the timeline may be:
40 days or more until the election
Provide training for Supervisors to help them legally and factually answer employee questions. Online resources such as the #1 selling "Supervisors Can Keep You Union Free" training can help insure consistency. For additional action-based training, Projections' "Catch Phrase" interactive eLearning provides supervisors with the opportunity to react to questions employees often pose.
Implement online resources for employees & families, such as a custom-built UnionFree.com website.
Hold weekly Essentials meetings with employees:
- Week One: Focus on the tactics organizers use to gain employee support. Show the dramatic production, "Little Card, Big Trouble" and "The Essentials on Union Organizing."
- Week Two: Focus on the risks of negotiations and the realities of More-Same-Less. Show "The Nightmare" and "The Essentials on Collective Bargaining."
- Week Three: Emphasize competitive advantages and the ability to move quickly to meet customer demands. Show "The Essentials on Job Security."
- Week Four: Open up discussion on what it can mean to go on strike. Show "The Essentials on Strikes"
- Week Five: Focus on the union working to organize employees. Provide concrete and verifiable information on membership, finances, strikes, etc. Show "Union-Specific Essentials 25th Hour"
Fewer than 30 days until the election
Condense Supervisor Training to the final 3 modules of the "Supervisors Can Keep You Union Free" online or DVD training.
Launch a custom-built UnionFree.com website for employees & families to answer any questions posed by employees or union organizers.
Hold twice weekly employee meetings (Tuesdays and Fridays are ideal in most situations) to show the Essentials series and have open & frank discussions on each topic. See "40 days" section for specific topics.
Fewer than 10 days until the election
Immediately launch Essentials Union-Specific Off-the-Shelf website to deliver information specific to the union working to organize employees.
Hold daily employee meetings, in which one "Essentials" program is shown. See "40 days" section for specific topics for each day.
For 30 years, Projections has helped companies communicate with their employees on a moments notice. While the new timeframe may provide a twist in the election process, Projections will still be able to offer the resources necessary for companies that wish to remain union-free.
For full-length previews of the videos, e-Learning, and websites mentioned in this article, please visit Projections' Insider Network. Membership is complimentary for qualified members of management, attorneys and consultants.
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