Since sharing this blog post the day before the National Labor Relations Board’s “quickie-election rules” went into effect on April 14, I’ve been waiting to see if the predictions shared therein would come to pass.
More specifically, would there be — as predicted by various employment attorneys I talked to — a surge in the number of representation petitions filed with the NLRB by unions just waiting for those rules to help them hurry up their process?
Well, I just got confirmation from NLRB spokesperson Jessica Kahanek that there’s been a 32-percent spike in union petitions lodged with her agency in one month since the rule’s enactment. Broken down, that’s 212 petitions from March 13 to April 13 and 280 from April 14 to May 14. An impressive and additional 104 petitions were filed between May 14 and May 27, she tells me. Spike indeed!
Kahanek also notes that elections are now taking place — on average — 23 days from the date of the petition. This duration is a dramatic shift from the 38-day average that existed under the previous rule.
What’s also interesting to note is that the petitions didn’t come flooding in starting on April 14. On the contrary, says Steve Bernstein, a Tampa, Fla.-based labor attorney with Fisher & Phillips, “in the first two weeks after the rule, the numbers of petitions filed were flat, maybe even down some; only in the last two to three weeks have we been seeing them really climbing.”
So what does that mean? It means even the unions needed some time to figure out all the new procedures contained in the new rules. “It’s been a learning curve for everyone,” Bernstein says.
What it all really means — to employers — is now’s the time to talk up your company and make no bones about stressing with employees that it’s a better place to work communicating directly with management than through third-party representation.
Bernstein calls this “front-loading the message.”
Employers, he says, “have the opportunity to use this [albeit shorter] period of time to take the initiative away from the union.”
Some companies, in fact, are getting ready for the NLRB before the NLRB even comes knocking. They’re getting all the new data being asked for — employee emails, phone numbers, work histories, job classifications, etc. — collected and collated now “so they’re positioned to be standing on ‘Go’ when the petition arrives and can use all their time getting their message out,” says Bernstein. He recommends that you:
“start from the standpoint that, with the new rules, comes a new petition form giving unions the opportunity to request the earliest election dates possible, usually two weeks out. So you, the employer, can posit the question, ‘Why is this union trying to move so fast on something so important to your lives and the lives of your families as this?’ “
In terms of the new administrative and disclosure requirements contained in the rules, he says, rather than focusing only on scrambling around trying to meet them all, think about taking this approach:
“In many circles, the kind of employee data they’re now demanding from employers would look like an invasion of privacy. So you can put out the immediate message, ‘They’re not even here yet and look at the personal information they already want on you. Why do they want all this from us?’ “
In other words, the NLRB has changed the rules, so you can too. (FYI, my earlier post, linked above, contains the NLRB’s position and purpose in the rule changes.)
You don’t even have to wait for a petition to start the conversation. In addition to getting all your data ducks lined up, you can join with the many companies Bernstein is already seeing “embracing the notion that it’s OK to talk about this, now, with employees,” sooner than later, he says.
Nothing wrong with telling your employees, “Let’s have this union dialogue now,” he says, especially in businesses and industries where unions are dominant. Some companies are even fashioning tailored, customized videos along these lines to go with their orientation processes, i.e., why no union is better than representation.
“You’re really trying to establish this line of communication, getting them used to hearing about this, so it doesn’t just sound like a defensive move after the petition has arrived,” Bernstein says.
So, to recap, your message to them: “Hey, it’s OK to talk about this now, folks!”
And my message to you: Ditto.