The National Labor Relations Board (NLRB) recently modified its union election rules and these changes went into effect on April 14, 2015. Commonly referred to as the “quickie election rules,” the new procedures increase administrative burdens for employers and speed up the election process. The bottom line is that employers will have less time to conduct an effective communications program and tackle important issues during a union election.
Click HERE to read the Final Rule.
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A Quick Background: How Representation Elections Typically Work
- First, the employee(s)/union ("petitioner") files a representation petition to have the NLRB conduct an election.
- Next, election-related issues - such as voter eligibility and bargaining unit composition - are determined. In most instances, the petitioner and the employer (the parties) agree on these issues. Or, there may be a hearing on those issues if there is no agreement.
- Then, the NLRB’s regional office conducts a secret ballot election, and a majority of the votes cast determine whether or not the employees will be represented by a union.
There are strict procedures that govern various parts of the election process, and those procedures are what this Final Rule amends.
The New Election Procedures: What Employers Need to Know
- The NLRB is Going Electronic – Parties may now file most documents, including petitions, electronically, rather than by fax or mail.
- Employers Must Provide Personal Email and Phone Numbers of Employees – After the election is set, the employer has to provide a list of eligible voters, commonly referred to as an "Excelsior List," to the NLRB. The NLRB provides that list to the union. Under the old rules, the list only had to contain the names and home addresses of employees. The Excelsior List list must now also include personal phone numbers and email addresses if available to the employer.
- Voter Eligibility List Must be Provided In 2 Days - The list of eligible employees and their contact information, which previously had to be provided to the NLRB within 7 days of an election agreement, must now be provided to the NLRB within 2 business days of the election agreement.
- Employers Must Respond to a Petition and Provide an Employee List - An employer is now required to raise any issues it has with the representation petition by filing a Statement of Position. And, as part of its Statement of Position, the employer is required to provide all other parties with a list of prospective voters, their job classifications, shifts and work locations. Previously, an employer wasn't required to share a list of prospective voters until after an election had been agreed upon. This helps give the union more immediate access to your employees.
- Eligibility and Other Issues Might Go Unresolved Until After the Election - Under the old rules, the parties could insist on a hearing to litigate voter eligibility and inclusion issues prior to the election - which could delay the election. The delay usually favored the employer by giving it more time to respond and to educate employees as to the pros and cons of having a union. Now, generally only issues about whether an election should be conducted in the first place will be litigated in a pre-election hearing, so the election will likely not be delayed.
- There is Limited Review of Rulings and Fewer Election Stays – Elections used to be delayed 25-30 days to allow the NLRB to consider any request for review of the regional director's decision. Now, the parties may seek review of all regional representation-case rulings through a single post-election request. An election will no longer be delayed after the regional director issues a decision and direction of election without an order from the Board.
5 Essential Strategies for Employers
In light of the new rules, employers must focus NOW on developing an ongoing preventative employee relations program rather than just trying to run a pro-company campaign after the filing of a petition.
Here are 5 Essential Strategies:
- Have a Real Open Door Policy. You should have and widely publicize an open-door policy that promotes good employee-management communication. Members of the management team should: (a) actively engage employees, (b) listen to all employee concerns, (c) take steps to resolve the concerns if necessary, and (d) communicate the steps taken to the employee or provide an explanation as to why steps weren't taken. Employees should know their concerns are important to and respected by the company, and you should tell them exactly where to go with those concerns - directly to management, by calling a hotline, in meetings or some other method. Give people multiple options to express their concerns and ideas and don't rigidly adhere to the "chain of command" when it comes to employer/employee communications.
- Put Safety First. Millennials are increasingly becoming a big part of the workforce in the EMS industry. This demographic was increasingly protected from danger while growing up and Millenials have never known an era before drug-free zones, child-proof homes, and bicycle helmets. Make sure that your employees know that you view safety as a primary mission. Promote a culture of transparency and accountability by tracking safety-related activities, conducting regular safety training and drills, posting safety notices, and addressing employees' safety concerns immediately.
- Remember "TIPS." Do you know what to do or what you can say to your employees regarding union activity? More importantly, do you know what you can't say to your employees about unions and their organizing efforts? Employers should train management that that they cannot do any of the following:
- Threaten - employers can't threaten employees with adverse action (termination, closing the company) because of union activity.
- Interrogate - employers can't ask employees questions about their union activity such as: "Hey, can you tell me who is supporting this union thing?"
- Promise - employers can't promise benefits, such as better wages or health insurance, if they vote against the union.
- Spy - employers may not spy or conduct surveillance of employees' union activities. For example, you may not send a supervisor to a union meeting and have that person report back to management.
Take an Honest Look at Benefits and Remind Employees of the Good Things They Have. Diminishing reimbursement and tight margins are an economic reality for many EMS agencies. But denying your employees fair and comparable wages and benefits could be a huge mistake. To the extent that you can, you should set wages and offer benefits that are in line with similar agencies. Be consistent, too. Compensate your employees according to criteria like length of service and experience. Finally, remind your employees not only about the obvious benefits that you offer (like flexible schedules and tuition reimbursement), but also about the less obvious benefits they receive from the company such as: covering health insurance costs and other employer-provided benefits.
Be Consistent. Enforce company policies fairly and uniformly. Employees are more likely to seek out a union if they feel their leaders take sides and show favoritism. Carefully document any disciplinary actions to demonstrate compliance and appropriate responses to situations. It's also important to have your policies reviewed by experienced legal counsel to ensure that they are up to date and that they apply fairly and equally to all employees. Everyone should know exactly what the rules are and how they are enforced.