NLRB once again pushing ‘quickie election’ rules
Union membership in the United States has declined significantly in recent decades. After peaking at 28.3 percent of all employed workers in 1954, the union membership rate has steadily dropped to 11.3 percent in 2013. Even more representative of the state of unionization, current private-sector union membership is only 6.7 percent, less than 20 percent the rate of public-sector workers (35.3 percent).
In a move anticipated to help reverse that declining trend in union membership, the National Labor Relations Board (NLRB) recently re-proposed a rule that would make it significantly easier for a union to organize a workplace. This rule revising the election procedures was originally proposed in 2011 but was overturned by the courts because of procedural flaws. The current version, essentially the same as that proposed in 2011, significantly shortens the time period for union certification elections. Should this rule be implemented, it would likely limit employers’ free speech rights and prevent workers from getting full and complete information about the advantages and disadvantages of joining a union.
Many business groups — including the U.S. Poultry & Egg Association, National Chicken Council and National Turkey Federation — filed written comments opposing the proposed rule. A copy of the poultry associations’ letter is available at http://www.uspoultry.org/positionpapers.
Most business groups see the proposed rule as pro-union and anti-business, believing it would radically undermine employers’ due process rights while giving a huge advantage to unions by limiting employers’ participation prior to an election. Specifically, it would:
- Limit employers’ free speech rights, giving them very little notice and almost no time to discuss the issues with their workers.
- Require employers to turn over employees’ personal information to unions such as home and cell phone numbers and e-mail addresses.
- Shorten the union election process to as little as 10 days, instead of the current median of 38 days.
- Give employers only seven days to file a formal statement raising issues and stating their basis, or forfeit the legal right to pursue them.
- Allow up to 20 percent of the unit’s workers to cast ballots even if their eligibility is being contested by deferring the litigation of eligibility until after the election.
Unions and the NLRB understand the importance of emotion during an election campaign, and this rule helps keep emotions high throughout the election period. As Chris Lauderdale, an attorney with Jackson Lewis P.C., recently pointed out during USPOULTRY’s 2014 Human Resources Seminar, pro-union emotion typically peaks just as the union files a petition for an election but steadily begins to fade as emotion is replaced by reason when both sides are able to present the issues and the facts to the employees. Shortening the election cycle will certainly benefit the unions, as the time for reason to surpass emotion is reduced.
Most important, by all reasonable measures, the new rule is simply not needed. The NLRB already handles election requests quickly and unions already win more than 65 percent of all organizing elections. Unions currently have months to give workers its side of the issue without employer response, and under the new rules, could launch an ambush election when it felt the time was ripe, providing employers with very limited time to discuss the union campaign with employees once the request for an election was made.
Despite whether the new rule is implemented, employers who desire to maintain a union-free workplace must not wait until they receive notice of a hearing in advance of a union election to begin a union-free campaign. Lauderdale provided further guidance in his remarks at the USPOULTRY seminar, reminding us that employees have at least four options on where to turn when they have an issue in the workplace: government agencies, trial lawyers, unions or the employer. To remain union-free, we need to be advocates for our employees, encouraging them to come forward with their issues and then really listen and provide a prompt and reasonable response. Even when we are unable to resolve the issue, the employee deserves an explanation and an opportunity to take the issue to another level without any fear of retaliation.
National Labor Relations Act of 1935
The National Labor Relations Act is a 1935 federal law that limits how employers may react to workers in the private sector who create labor unions, engage in collective bargaining, and take part in strikes and other forms of concerted activity in support of their demands. Along with the 1947 Taft–Hartley Act, which added a list of prohibited unfair labor practices on the part of unions, these two laws have governed the federal government’s involvement in labor relations for the last 67 years.