In the labor world, 2014 has started out with a bang. We have seen a hotly contested union election at Volkswagen in Chattanooga make national news culminating in an employer victory. Commentators have openly questioned whether this portends an era of reinvigorated union efforts to gain a toehold in the historically company-friendly Southeast. We have also seen a decidedly union-friendly and reinvigorated National Labor Relations Board (NLRB) roll-out a new set of initiatives that champions and critics alike agree will make it easier to organize employees. While it may still be premature to draw any sweeping conclusions, these intensified union and regulatory efforts highlight the importance of early preparation, should the union come knocking at the door.

On February 4, 2014, the NLRB proposed a set of "Quickie Election" rules, designed to speed up the process of conducting a union election. Under the current rules, elections take approximately two months, meaning that employers have two months to develop and execute an anti-union campaign. Statistically, when management has more time to oppose union organizing efforts, union success rates drop exponentially. The NLRB's proposed "Quickie Election" rules purport to "simplify" election procedures, increase transparency and uniformity, and provide clarification to elections. Some of the key provisions of these rules include:

  • Shortening the timeframe between the filing of an election petition and an election from two months to three weeks or less;
  • Revising the process for addressing representational issues and the desired unit composition by creating new pre-hearing requirements and shortening the timeframe from weeks to days to conduct a pre-hearing election; and
  • Requiring employers to disclose employee telephone numbers and email addresses in voter eligibility lists.

Explanations of "simplicity" notwithstanding everyone knows that these new rules giving unions greater access to employees create roadblocks for employers to assess, canvass, organize, develop an anti-union strategy, and effectively execute that strategy during the campaign. Unfortunately, many believe that these rules are a foregone conclusion because the 2011 rules were stymied for lack of a quorum.

As we begin a new calendar year, increased unionizing efforts in the Southeast coupled with the likelihood of new rules that will limit an employer's ability to challenge unionization effectively, increase the importance of management preparation. What should proactive companies do to be ready in this environment?

Assess the Workplace Culture

Do employees have, and are they aware of, resources that identify and address issues or concerns regarding working conditions or other terms of employment? Determine whether there are any barriers - or perceived barriers - to reporting issues to management. Additionally, determine the strengths and weaknesses of management and whether there is any inconsistency in responsiveness, availability and discipline. Well-drafted policies that reflect the employer's values have marginal utility when front-line supervisors who have the most contact with employees do not reflect those values in their everyday activities and interactions with staff. Ensuring that managers constantly communicate, promote workplace empowerment and avoid favoritism is one of the best defenses to unionization.

Assess Management Preparedness

If an election petition were filed today, would you be ready to oppose it effectively in less than three weeks? Have managers been sufficiently trained to answer or respond to employee inquiries about unionization? What would your core message and theme be during the election? When it comes to union elections, practice does make perfect. For most employers, an election is their first go-around. That is why it is so important to assess your preparedness. Prudent employers should undergo training on how to conduct a self-assessment, an election canvass, and a mock campaign. This process will help identify team roles during an election, bring to light real issues that may not have been previously addressed, and establish protocols to react effectively to the first signs of a union on premises.

The events in Chattanooga notwithstanding, it is likely that unions - both large and small - will continue to to make inroads into an untapped and growing Southeastern labor market, leveraging every advantage the currently union-friendly NLRB will provide. 2013 has proven that election petitions in the Southeast are on the rise, and Tennessee remains fertile ground for unionization efforts. Employers that wish to remain union free should be proactive and prepared for the challenge.

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