With private sector union representation at historic lows – just 6.7% of the workforce – many employers have given little thought to how they would respond to a union organizing petition. However, two legal developments, one a year old and the other soon to be implemented, demonstrate the need for employers to give thought to such a situation before it arises, because there will be little time and potentially fewer resources available if a union petitions for an election.
The formal process of a union election begins with a petition for representation filed with the National Labor Relations Board (“NLRB”). Historically, an employer had between four and six weeks between receiving such a petition and the actual election in which to run a campaign and convince employees to vote against union representation. However, the NLRB adopted new rules in April 2015 designed to streamline the election process and shorten the time between petition and election. In the first nine months of operating under the new rules, the average time between a petition and an election fell from 38 days to 24 days. Because the first eight days of this period are generally spent by the employer trying to prepare for an NLRB hearing to determine important issues like the scope of the voting unit and voter eligibility, the time for a campaign has been essentially cut in half.
New U.S. Department of Labor (“DOL”) regulations scheduled to take effect July 1, 2016, may impose significant burdens on employers getting outside assistance in opposing union organizing. The new regulations would require employers to reveal the details of agreements with any person or organization, including attorneys, assisting an employer in convincing employees to vote for or against a union. The new regulations also impose reporting requirements on the persons or organizations providing such assistance, such as requiring them to disclose amounts received for such service. Such reports would be available to the public, and failure to submit required reports would be a criminal offense. If the regulations go into effect, employers would need to decide whether the advantages of using an outside firm to assist in its campaign outweigh the potential disadvantages, including negative publicity, associated with a required report.
Fortunately, there is some good news for employers. While elections were much quicker under the new rules, the percentage of elections won by the petitioning union was essentially unchanged – it actually dropped from 70% to 68% in a year-over-year comparison. Additionally, at least three lawsuits have been filed challenging the DOL’s new reporting regulations for persuader activity. It is, therefore, unclear whether the new reporting regulations will become effective as scheduled.
Regardless, employers should consider, before a petition is filed, how they would react to a union organizing campaign. Even employers that believe they are not vulnerable to union organizing efforts should take the following steps:
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Develop a chain of responsibility within the organization to deal with an NLRB petition and enable a timely response;
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Consider the alternatives of handling a campaign in-house or using a capable outside firm or agency that would fit the employer’s employee relations philosophy;
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Identify major issues that may arise in representation proceedings including the supervisory status of employees and scope of putative bargaining units; and
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Review your wages, benefits and employee policies to make sure you are aware of any vulnerabilities that a union may capitalize on to try to organize your employees; if feasible, consider planning in advance organizational and/or benefit changes, and maintain a detailed record of those potential changes.
Counsel experienced in union organizing efforts, working together with an in-house labor team, could help frame in advance a sound strategy for responding to any union organizing drive. Because all legal issues related to the representation petition must be raised in writing within seven days of receiving a petition or are waived, labor counsel should be available and ready to act as soon as a petition is filed.
