The much ballyhooed National Labor Relations Board (NLRB) rule shortening the process leading up to unionization elections is now in force, leaving employers scrambling to figure out how best to protect their interests. One bit of advice: Focus on supervisor training. 
Supervisors are the employer’s eyes and ears among employees, according to Kevin C. McCormick and Charles H. Kaplan, two attorneys experienced in union avoidance who recently conducted a Business and Legal Resources webinar on how employers should respond to the new rule, which went into effect April 14.
Since the new rule means employers will have less time to react to a unionization campaign, they need to be ready well before a petition for a union election is filed, McCormick, an attorney with Whiteford, Taylor & Preston, L.L.P. in Baltimore, Maryland, said.
Kaplan, an attorney with Sills Cummis & Gross P.C. in New York City, also urged a proactive strategy because by the time a union files a petition with the NLRB, “it’ll be too late.”
What supervisors should know
The attorneys said a training program should include a focus on supervisor buy-in. Supervisors often don’t realize how disruptive a union can be, McCormick said, so the employer needs to make sure its managers and supervisors understand how unionization would affect them.
For example, unions bring restrictive work rules that can limit a supervisor’s ability to get the job done, and worker seniority may become more important than worker competency, McCormick and Kaplan said. Also, employee discipline and discharge can be more difficult in a unionized workplace, and the presence of union shop stewards can be disruptive.
Therefore it’s important for supervisors to know what to look for and what to do when they see signs of a budding union campaign. Here are some early warning signs from McCormick and Kaplan:
- Strangers loitering on or around company property and stopping to talk with employees.
- Employees standing around time clocks or sign-in sheets copying names.
- Union literature/authorization cards around the workplace.
- Small groups of employees that break up or become silent when supervisors approach.
- Newly formed groups of employees who have never associated with one another in the past.
- Increased and unusual complaints about disciplinary actions from employees who aren’t the focus of the discipline.
- Normally friendly employees who suddenly become cool toward supervisors.
- Incidents of insubordination from employees who have not caused problems in the past.
- Employees complaining about work-related matters in groups rather than individually.
- Employees using “union words,” such as “collective bargaining,” “organize,” “protected activity,” or claims of knowing one’s rights and threats to “go to the Labor Board.”
- Employees who suddenly start wandering around the workplace to talk to others in different departments or areas.
“TIPS” on what not to do
Although employers can carefully point out the disadvantages a union can bring, supervisors and others have to be wary of violating the National Labor Relations Act when communicating with employees. McCormick and Kaplan use the TIPS acronym to inform supervisors what they cannot do:
- T – Threaten
- I – Interrogate
- P – Promise
- S – Spy
Also, supervisors should be reminded that the law prohibits discriminating against any employee because of his or her union activity.
Time and other foes
Under the old rules, elections were usually conducted weeks after a petition for an election, but now elections can be held as quickly as 15 days from the filing of a petition. The time crunch isn’t the only enemy employers face when reacting to an impending union election. Managers also need to know the implications of examining union authorization cards, McCormick and Kaplan said.
Often union organizers will get workers to sign cards and then turn them over to the employer for verification. To be assured of getting an election, a union has to get cards from at least 30 percent of the potential bargaining unit, but “no self-respecting union” would petition for an election with that minimum number, McCormick said. Instead, organizers will get cards from a majority of the workers in a potential bargaining unit.
McCormick and Kaplan warn that if management takes the cards into its custody, the employer can be inadvertently recognizing the union as the bargaining agent. The attorneys advise politely refusing to take any documentation, and then reciting the following:
“I have good faith doubt that you or your union represent a majority of employees in any unit appropriate for bargaining at our company. I believe that the best way to determine any question concerning representation is to provide our employees the right to vote their conscience by secret ballot in an election conducted by the National Labor Relations Board.”
Need to learn more? Listen to NLRB’s New Quickie Elections Rule: How to Avoid a Union Ambush NOW on CD.