For business owners who are chilled by the prospect of their employees unionizing, new rule changes coming down the pike from the National Labor Relations Board could seem like a blizzard of bad fortune.
The proposed changes, which are still in the comment period but could be implemented later this summer, would likely expedite union election procedures, potentially cutting the amount of time it takes for employees to take a vote on unionizing from an average of about 39 days to a matter of two or three weeks. According to Bud Bobber, a partner in the Labor and Employment Group for Foley & Lardner, Milwaukee, some employers fear that this truncated election process would make it more likely that employees would ultimately choose to unionize.
“Unions have advocated for shorter time periods between the filing of their petition and the election, and they basically complained that in those 39 days, the employer has too much time to mount a counter-campaign and basically persuade its employees through a series of communications and presentations that they should vote no on the union,” said Bobber. “The unions have always felt that it’s not a level playing field because the employer can use work time to require people to sit in a captive meeting during their work hours … and the unions don’t have that opportunity to force people to sit in a room and listen to them.”
“I think some people are surprised to find that it’s not exclusively about wages, and that if any employer is attentive to the marketplace and can confirm on an ongoing basis that their wage structure is competitive … then in my experience and my clients’ experience, it’s not wage issues that drive the desire of employees to vote in a union.” – Bud Bobber, Foley & Lardner |
According to Bobber, the proposed rules would speed the union election process – which is managed by the labor board – in a few different ways. First, they would limit the ability of employers to challenge which employees can be part of the bargaining unit and thus eligible to vote in the election. In general, says Bobber, such challenges allow employers to slow down the election process.
“Under the new rules, if there’s a question about [who belongs in the bargaining unit], the evidentiary trial on that issue won’t be held until after the vote. It won’t be a preliminary step that might delay the scheduling of the vote, but instead will be held only after the vote.”
In addition, says Bobber, employers would be required to declare what issues they intend to challenge up front, not wait until the process is well underway.
“The board concluded, I believe, that too many employers drag out the process by adding new challenges along the way to the defined unit and the election procedures, and so a proposed rule change would be, you’ve got to say it up front,” said Bobber. “If you’re an employer and you have objections, you think something is proceeding improperly, you say it up front, and those are the only issues you can challenge. You don’t get to come back in round 2 with an amended set of challenges or objections to the process, or even round 3.”
According to Bobber, another “curious” rule change involves the use of modern technology to organize unionizing efforts.
“In addition to names and addresses, employers would have to give the union telephone numbers and email addresses if the employer has them, and again that will speed up and facilitate the union’s ability to communicate one-on-one with people,” said Bobber. “I call that proposed rule change curious because the board is lumping phone numbers in with email addresses, and on email addresses the board says, well, this is a new technology that was never considered under the old rules – people didn’t have email addresses when the current rules were put into place. But the curious thing is people did have phones back then, and for decades the rules have not required employers to give phone numbers, but now this board does propose making that a requirement.”
Nipping it in the bud
Of course, wherever one might stand on the desirability of allowing more time for companies to get their own message out about unionizing, most business owners would probably agree that they’d prefer to deal directly with their employees and not go through a third party.
“[If the projected timeline] is accurate, and most seem to think it is, employers are going to have roughly half the amount of time to mount their own internal campaign, get their message out, try to persuade their employees of their point of view, which is, ‘We prefer that you deal with us directly without some outside organization standing between us; we think we do business better if we do it directly and people are treated like individuals, not just as homogenous members of a group,’ and that’s a typical employer message,” said Bobber. “And they’ll have less time to accomplish that mission, and to me that’s an opportunity for me to remind my employer clients that if you don’t attend to the issues that drive labor organizing, if you’re not taking care of your business and attending to those issues on an ongoing basis, and you’re instead waiting to get a letter from the labor board saying, ‘Please take notice: a petition for election of a union has been filed with respect to your company’ – if you wait for that, you’re going to be too late.”
Of course, that begs the question: What kinds of issues should employers be most attentive to?
“I think some people are surprised to find that it’s not exclusively about wages, and that if any employer is attentive to the marketplace and can confirm on an ongoing basis that their wage structure is competitive … then in my experience and my clients’ experience, it’s not wage issues that drive the desire of employees to vote in a union,” said Bobber. “It seems to be people issues, and a core group of employees that might be treated very poorly and disrespectfully by a particular supervisor may decide that what we really need is to have somebody with a little more sophistication and clout and authority speak on our behalf and correct some of this. And that’s the real opportunity for employers, because so many of these things are people issues. Do employees feel respected; do they feel like their contribution to the organization is acknowledged and appreciated beyond just the weekly or twice-a-month paycheck, and are they acknowledged and appreciated as members of the team, that their input is heard and, if not always followed necessarily, is heard and respected and responded to?”
As for the specific steps employers can take to preserve morale, Bobber says the proper training of supervisors is key. Part of that involves maintaining a work environment free of hostility “based on protected categories that we all know – race, gender, religion, age over 40, disability status, etc.,” but also creating a company culture that emphasizes respect for employees.
“Companies have to train and then require their supervisors to be effective eyes and ears on the front lines,” said Bobber. “They are the people that most frequently observe the workforce and interact with the workforce. They should sense when there’s a concern about what the workforce perceives to be unfair treatment of any type, and if the supervisor is sensitized to that and realizes that it’s part of his or her obligation to identify that stuff and report it to management, typically HR, then the company can get into solving that problem before it festers long enough that people actually feel motivated to bring in an outside organization to try to solve it.”
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