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Making Union Organizing Easy and Managing a Business Almost Impossible

In the waning days of Wilma Liebman's tenure as Chairperson of the National Labor Relations Board, the Board overturned twenty years of labor law history and held in Specialty Healthcare that a group of employees as small as a single classification can be separately unionized (See Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)).  In August of this year, the Sixth Circuit Court of Appeals affirmed the Board decision, deferring to the Board's "expertise" in such matters.

We have a perfect storm brewing.  

Micro-units are vastly more easily organized than plant-wide or store-wide units.  It's just arithmetic.  Two of five dock workers (shipping and receiving employees) in a bar drinking after work can sign cards on which a valid petition for an election can be based and all they need is one more to vote for the union and it's done.  If the appropriate unit consists of 100 employees, the union's task is much more difficult. 

Micro-units may sound too fantastic to be true.  It's not.  The Board is turning its back on well-established rules, such as single plant and single store presumptions, and subjecting employers to the real risk of dealth by a thousand cuts.  

Regional Directors of the Board have been applying the new rules for the last two years.  Among their decisions has been to certify the employees in the women's shoe department at a Bergdorf Goodman in New York and the cosmetics and fragrance department employees at a Macy's in Massachusetts as appropriate units for bargaining.  How many departments in a department store?  How many classifications in workplace?  How many groupings of similar skill-sets are there?  The application of the new rule may result in union representation and union contract for each of those departments, classifications and groupings.  The result is chaos.  When last I looked, chaos does not produce productive workers.

The storm fronts also converging are the likelihood of quickie elections reducing the time to election from petition date to two weeks or less and the Department of Labor's revision of persuader rules so that obtaining confidential legal advice concerning the application of Labor Board rules much more complicated and difficult.

There are things that an employer can do to meet its new burden of showing that the employees in other classifications or departments have an "overwhelming community of interest" with the employees subject to the petition so that a unit of just those employees would be inappropriate. A short list that will be expanded to meet an individual employer's situation and methods of operation are  

  • examine your organization to determine which job classifications or departments share skill levels so that they can be combined to make broad identifiable groupings;
  • flatten your management organizing so that more employees report to the same managers;
  • develop incentive plans or productivity measurements that cover the larger groupings;
  • cross train employees in the putative larger unit so that they can move easily across traditional job classifications/departments; and
  •  establish compensation grids and promotional opportunities that are common for all employees in the larger unit.
Clearly, things are going to become more difficult as time goes by as more and more Regional Directors are asked to apply the Board's new rules.  What an employer that wishes to remain union free or, at least, does not want to be paralyzed by the balkanization of its workforce cannot do is ignore the signs of the perfect storm and take action to protect against them.



As predicted in my blog on Tuesday, a majority of the current Board (Chairman Pearce and Member Becker) adopted the Chairman's proposed changes to the rules governing elections without change.  Also as predicted, Member Hayes voted against the Proposal.  Consequently, the details of the proposed changes contained in Tuesday's blog continue to be accurate.

Significantly, only the Proposal was adopted and a draft of the new rules has not yet been published and no implementation date has been set. 

Something to watch in the draft of the new rules and future Board conduct is what the Board will do with the elimination of the 25 day wait between the direction of an election and the election.  The Proposal stated that the reason for the existing rule requiring the waiting period was to permit parties whose positions on issues raised in the representation hearing sufficient time to file petitions for review.  Since the Board was moving the resolution of almost all contested issues to post-election hearings, the purpose of the existing rule had been obviated.  Under the changes, pre-election Board reviews would be limited to extraordinary cases only involving whether a legitimate question of representation had been raised by the union's petition.

The devil is always in the details.  If the removal of the mandatory waiting period is used by the Regions to order quicky elections, the announced rationale for the change will have been a smoke-screen to hide the accomplishment of one of the Board majority's and organized labor's principal objectives, shortening the time between a petition and an election to limit or eliminate the ability of unprepared employers to mount effective counter-campaigns. 

The first evidence that we may see of whether the real motive for the removal of the waiting period following the direction of an election is to bring in quicky elections will likely be an internal change in instructions to Regional Directors, reducing the outside date by when elections should be scheduled from the current 42 days.

Reasonable business prudence dictates that employers should anticipate the possibility of quicky elections and not be caught unprepared to take immediate and effective action to combat organizing attempts. 



James Redeker

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.