The NLRB is again trying to trample employer free speech in order to aid union organizing. They're attempting to justify changing well-established rules and procedures by making the absurd assertion that the current time frame for conducting elections are resolving challenges is too slow and that this hurts employees and employers. Nothing could be further from the truth. According to the Board's own annual reports, the current process results in elections being conducted well within the NLRB's own guidelines.
The fact is that the unions do not want a level playing field. Unions spend months covertly organizing employees; informing employers of their presence at the facility only when the union either demands recognition or an election. Unions organize employees by essentially misrepresenting what they can do for the employees. They never explain that unions cannot dictate salary and benefit levels, ensure that employees have work, or guarantee the employees have a job. Nor do they tell employees that if the union calls a strike it can require the employees walk off the job or be disciplined, that the employee will be required to pay monthly dues to the union, or that by organizing the employees lose their ability to deal with employer on an individual basis to resolve issues.
Telling employees these things would not aid in the organizing effort. Hence, employers are left to explain these issues to employees. Under the existing election procedure, the employer had about a month to reach out to its employees and to explain the potential downside to organizing. This is an adequate amount of time. Still, unions win more than half the elections conducted. Such a success rate seems reasonable, but it is not enough for the unions or for the labor-friendly majority on the NLRB.
Thus, the NLRB seeks to implement a rule that could result in elections being conducted in less than twenty days. This severely handicaps employers in educating their workers about the downsides to organizing. Unions hope that, with this quicker procedure, employees will only hear the upside so that they vote in favor of the unions, rather than making an informed decision and potentially choosing not to have union representation.
The NLRB proposed and implemented this rule in 2011 only to have a federal judge strike it down because a three-member panel of the NLRB did not vote on the matter. Now that the NLRB has five members—three of whom favor the rule—the rule will surely be implemented. The question remains whether the federal courts will strike the law on substantive grounds. Given this uncertainty, non-unionized employers should consult with experienced labor counsel to determine if they're at risk of being organized and whether it makes sense to take certain pro-active steps to reduce that likelihood. Because once the union demands an election, there may not be time.
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