NLRB’s New Ruling Gives Unions the Quickie They Are Looking For

NN&V Exclusive

(Rebecca Smith) – Back in June of 2011, the NLRB started hinting that they would be looking at changing decades old election rules.  On January 12, 2012, they did it.  The new rules regarding union elections will go into effect in April, giving the lone dissenting member Brian Hayes time to write his dissent.

The NLRB has changed the rules to shorten the time between when the union files a petition to represent your employees and the day the employees actually get to vote on whether they want representation.  What used to take on average 45 days will now take about 30.

This change will severely hamper an employer’s efforts to educate employees on the facts regarding union representation so that they can make an informed decision.  This will also severely limit an employer’s ability to litigate the appropriate size of the unit and which employees would be included.

Complaints by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace have already been filed with the appropriate District Court.

This does not appear to be the end of the change as the NLRB has stated that they are still considering the following changes:

• Require any pre-election hearing be held seven days after service of the notice of hearing
• Require an employer file a written statement of position before the hearing or else waive any substantive arguments not advanced by that date

• Require voter (Excelsior) lists supplied to the union include employee telephone numbers and, where available, employee email addresses. (The Excelsior list is a list of all the employees and their addresses supplied to the union by the employer once a petition is filed. – R.S.)

• Require the voter list be supplied within two days after the direction of election, rather than the seven days currently called for.
• Permit unions to file representation petitions and related documents electronically.

In the past, employers had the luxury of combating union organizing when it knocked on their door; however, they no longer can count on that.  Employers must start to be more proactive in educating their employees before the union arrives.  The more educated the workforce is on unionism, the less likely they are to sign a card of union interest.

Unions are less picky about who or what they unionize today.  InMinneapolis, a Jimmy John’s Gourmet Sandwich Franchise owner found out the hard way.  The cost of fighting the union once they were there far outweighed the cost of stopping them from getting in.  Not only did he have the cost incurred by the campaign itself, but the sabotage to his business, picketers outside the store, and the hostility between workers added to the cost both financially and emotionally.  The fights where messy, mean, and the group took their fight to the public through a sympathetic press.

To add insult to injury, Obama’s new appointee to the NLRB, Brian Griffin, will be collecting an income from the OEIU while he serves on the board. Griffinworked as legal counsel for the Operating Engineers for the past three years.  As he begins his tenure on the NLRB, he will also start collecting his pension from the OEIU. (Griffinfailed to report the amount in his disclosure filings.)

No conflict of interest there.

(Rebecca Smith is a former Teamster who now owns Taltos Consulting, Inc. and is a lead consultant for the Labor Relations Institute. She volunteers with the Wounded Warrior Project and St Jude’s Children’s Hospital.)