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Make Sure You Don't Get 'Ambushed'

Feb. 11, 2015
If you treat your employees well and fairly, unions will have a harder time getting 
their foot in the door.

Developing an effective strategy to keep your business union-free is expected to get a lot harder thanks to the December 2014 decision by the National Labor Relations Board.

The NLRB handed unions a huge organizing advantage when it adopted what is called the "ambush" or "quickie" election rule. Unless the court hearing a legal challenge from employer groups grants an injunction blocking it, the new rule will go into effect on April 14, 2015. 

What that means is that you still have time to prepare. Assuming it does go into effect, the rule could reduce the time from when a union files a petition with the NLRB to hold a representation election to when that vote takes place from the current 42 days to as few as 14 days, giving the employer little time to mount an effective counter-campaign.

"Union organizing efforts, which have languished for years, are certain to receive a boost from the board's action," observe lawyers at the firm of Jackson Lewis PC. "Employers unprepared for the rule will be at a disadvantage." Here is their advice:

Develop a strategic, company-wide labor relations plan. Key executives and legal counsel should review your options for strategic decisions in light of the new rule and other recent NLRB actions. 

Train managers/supervisors before the rule is implemented. Topics should include revised NLRB election procedures, their impact on your firm, your position on unionization, the significance of authorization cards, early warning signs of union activity, and what and when your organization may communicate lawfully with employees regarding union drives and signing union cards. Everyone legally defined as a supervisor should be trained. 

Eliminate issues immediately. This is a good time to embrace the Golden Rule if you haven't done so already. "Conduct a legal/human resource vulnerability assessment to identify, address and eliminate legitimate workplace issues now," Jackson Lewis stresses.

Conduct critical bargaining unit and supervisory analyses. By attempting to minimize pre-election litigation, the rule encourages uncertainty regarding the bargaining unit, voter eligibility and supervisory status of individuals who can communicate lawfully for the employer. This makes clarification essential. Conduct a bargaining unit analysis to establish the best units from an employer perspective in light of recent NLRB decisions. 

Assess status of potential supervisors. Supervisors are not eligible to vote and, as agents of the employer, you are responsible for their statements and actions. The employer also may use individuals to communicate with workers (such as while off-shift or in languages other than English). Consider adjustments based upon practical and legal considerations.

Develop a representation case litigation plan. The employer is required to file a position statement concerning unit issues and other matters within days of the NLRB petition being filed. You must start thinking strategically now and prepare information in advance, Jackson Lewis urges.

Communicate with employees about the NLRB rule. Address your organization's labor relations philosophy in new-hire orientation and an employee handbook. Also consider regular messaging consistent with your company's labor relations approach.

Prepare a "break the glass kit." Have a company-specific "don't sign the card" letter, other communications and handouts ready in the event of union activity. Identify and train a rapid response team prepared to act in the event of union activity. These core members of management should have in-depth knowledge about what the employer can and cannot say or do.

There is one more thing Jackson Lewis doesn't mention that can give you the advantage in effectively blocking attempts to organize your business: Forge a management policy based on the Golden Rule. Even union organizers admit that it is difficult to win over workers who believe they are being compensated fairly, and treated well and with respect by their employers.  

David Sparkman is founding editor of ACWI Advance (, the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board.

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