For any employer who values its union-free work environment, this is a bonafide alert, not a false alarm. Now that EFCA (Employee Free Choice Act) is DOA (dead on arrival) in Congress, the Obama Labor Board has decided to just bypass Congress entirely. The NLRB will soon implement its new rules and regulations to shorten the election cycle, limit employer legal challenges to elections, and increase union victories in elections conducted by the National Labor Relations Board. Why is the Labor Board doing this? That’s simple – because it can. For its authority, the Board majority cites Section 6 (29 U.S.C. 156) of the National Labor Relations Act. It states, in part, that the Board has authority to make, amend, or rescind such rules and regulations as may be necessary to carry out the provisions of the Act. Who gave the Board such absolute authority?…..That’s right, you guessed it, Congress.
Exercising this statutory authority, on June 22, 2011, the National Labor Relations Board proposed changes to its rules and regulations. Public comment on these rules expires on August 22, 2011. These rules will likely be enacted, without substantial change, early in the 4th quarter of 2011. These rule changes have the purpose and effect of giving unions greatly increased odds of winning elections. But don’t take my word for it, let me share two quotes from the lone dissenter on the National Labor Relations Board, member Brian E. Hayes:
“Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: To stifle full debate on matters that demand it, in furtherance of a belief that employers should have little, or no involvement in the resolution of questions concerning [union] representation. I can and do dissent.”
“…[t]he proposed rules will (1) substantially shorten the time between the filing of the petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct.. Thus, by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought-after “quickie election” option, a procedure under which elections will be held in 10-21 days from the filing of a petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”
All Employers Will be Targeted: Expect a new wave of union organizing activity immediately after these new Labor Board rules are enacted. Under these new rules, once a union files a petition to represent employees, employers will have little or no time to mount a campaign in opposition to union representation. A ten-day to twenty-one day election cycle offers an employer little opportunity to counter the union’s empty, campaign promises and rhetoric. Without advance preparation, the employer’s exercise of free speech will be stifled. Many employers will have no real opportunity to be heard. Small employers, without necessary contacts and financial resources to react quickly, may be overwhelmed.
A Rapid Response is Necessary to Preserve Your Union-Free Work Environment: What can be done? Employers must anticipate and respond to a future campaign by acting now. Initial steps need to be completed. A workplace assessment, by a labor-relations professional, can help any employer address areas of concern in order to reduce the risk of unionization. Union avoidance training will empower management to recognize and lawfully respond to union organizing activity from the very outset. Employee training is also essential so that employees are not misled by the union’s empty campaign rhetoric. Employees must understand the legal significance of a union authorization card, before they inadvertently sign a document that could lead to a union election. And, if there is any indication that union organizing activity is already underway, then time is of the essence. With a shortened, 10-21 day election cycle, the employer that hesitates or delays will be unionized. Professional assistance, timely preparation and training will be your best defense to preserve your union-free work environment.