Press Release: NLRB “Quickie Election” Rule is Now in Effect

April 30, 2012

FOR IMMEDIATE RELEASE

NLRB “Quickie Election” Rule is Now in Effect

Two weeks ago, I was glad to report that the National Labor Relations Board’s requirement to post an “NLRA Rights” poster was put on hold until at least the end of this year. Today, my news is not so positive. The NLRB “quickie elections” rule is now in effect and dramatically changes how union elections are conducted.

Pursuant to the new rule, the time between when a union files a petition with the NLRB seeking an election and when the election is held has been dramatically reduced from roughly 45 days to just a few short weeks. Statistically, the less notice employers have about a union organizing campaign, and the less time they have to campaign about the merits of remaining union-free, the more likely employees are to vote in favor of union representation. 

Employers are also limited in the type of appeals and the timing to bring appeals regarding union campaign tactics and union-proposed bargaining units. These election procedures were standard for decades and kept deceptive and illegal union organizing in check, ensured only appropriate, non-managerial employees were included in bargaining units, and postponed election dates until all pre-election issues were resolved. 

Most pre-election issues will no longer be resolved before the election. The effect of these changes, especially when considering that “micro bargaining units” are now permitted, will likely increase the number of unions at smaller employers whose employees are more vulnerable to union organizing tactics. Employers of all sizes, though, should ensure they are preemptively insulated from a union’s attempt to organize their employees. 

 

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

What Are Labor Negotiations Like?

Labor negotiations are like snow flakes – no two are alike. There are many factors that go into making up labor negotiations that a blanket “what are labor negotiations like” is difficult to define. The employer’s level of resistance to the union, the union’s level of understanding the employer’s business, the negotiators’ personalities on both sides, and the bargaining committee employees’ ability to understand their role in the process all blend together to define what labor negotiations are like.

First contract bargaining is much different from successor bargaining. In first contract bargaining, the parties are just coming off of a campaign and election. The union is proud of its win and the employees often feel overly empowered. Conversely, the employer is upset and jaded that the company must bargain with the union. These polar opposite attitudes usually take some time to get over. When negotiating successor agreements, the more agreements companies negotiate, the less confrontational they usually become because the parties have learned how to work together, the employer has accepted the union’s presence in the workplace, and the union more thoroughly understands the employer’s business.

While attitudes play a major part of labor negotiations, all negotiations have certain activities and appearance. For example each party literally does sit on its own side of the table. Negotiations usually begin on the first day with setting ground rules. These rules involve such things as how long bargaining sessions will last, on what dates will they occur (bargaining can last weeks or months, but rarely occurs on successive days for that amount of time), whether the bargaining unit members will be paid for their attendance at the table – employers are required to allow employees who are on the bargaining committee time off from work, but that time does not have to be paid time off. 

Once the ground rules are out of the way, either side will provide an opening written proposal to the other side or both sides provide simultaneous opening proposals. The parties discuss the proposals at the table, explain the proposals, ask questions to clarify ambiguities or motive, and then separate into different rooms. This separation is called “caucusing” and provides an opportunity for each side to discuss the proposals among their own team. The parties can either reconvene and ask additional questions, or reconvene to exchange additional proposals.

In a nutshell, this process occurs until each clause of the collective bargaining agreement is agreed upon. Of course, negotiations rarely go this smoothly. There is usually blustering, canceled negotiations, a lot of document requests, sometimes unfair labor practice charges, and occasional yelling and violence. Savvy business executives and owners do not attend bargaining sessions because their time is better spent running the company. Instead, those executives and owner retain legal counsel like me, who is trained to cut through the blustering and unproductive bargaining time and hammer out a quality contract on behalf of the employer.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

Optional Arbitration Agreements May Violate the NLRA

 

As appeared in the Human Resource of Central Ohio (HRACO) monthly newsletter

 

Optional Employee Arbitration Agreements Allegedly Violate the NLRA

When I first learned about this, I thought “Just how far will the National Labor Relations Board go to exert its influence over businesses without unions?” If you follow my articles in this newsletter or read the alerts that I’ve sent out over the past few months, you know that the NLRB is regulating areas it has never before regulated. And because of the Board’s recent aggressive expansion, non-union companies must pay extremely close attention to what the NLRB is doing.

In January 2012, the Board prohibited employers from requiring employees to sign arbitration agreements preventing employees from joining other workers in class-action arbitration proceedings or lawsuits. In essence, the Board decided that a “you cannot file an employment related class action lawsuit against this company” policy interfered with the freedom of employees to act concertedly regarding terms and conditions of employment – a hallmark of the National Labor Relations Act. I hope that none of your companies still have the blanket policy. If so, time to change it.

But what do you change it to? Here’s a hint of what not to change it to: Do not change the policy from “you cannot file an employment related class action lawsuit against this company” to “you cannot file an employment related class action lawsuit against this company unless you opt out of this policy within your first 30-days of working here.” The NLRB does not like the opt-out provision, either.

24 Hour Fitness USA, Inc., a national chain of non-union health clubs, has a policy that requires employees to submit all employment related disputes to individual arbitration unless the employee opts out of that requirement within thirty days of receiving the company handbook. To opt out, the employees must request and fill out a company provided form. Once the form is submitted back to the company, that employee is free to join a future employment related class or collective action against 24 Hour Fitness.

The National Labor Relations Board believes that requiring employees to affirmatively opt out of individual arbitration agreements within 30 days of starting a job interferes with their ability to act concertedly, and the Board has filed a Complaint against 24 Hour Fitness on this theory. Interestingly, the NLRB’s press release did not mention the 30-day opt out provision. Instead, it said, “Since at least the summer of 2010, the company has enforced its no-class-action policy by asserting it in litigation brought by employees in numerous cases, seven of which are cited in the complaint. In each case, employees, who are not represented by a union, sought to bring workplace-related claims, such as wage and hour violations, on a class-wide basis.”

Although most business owners and many human resource professionals ignore the NLRB if their workers are not in a union, the NLRB does not ignore non-union workers. Over the past few years, the NLRB has consistently extended its authority to non-union workforces, like 24 Hour Fitness, by broadening its ability to govern protected concerted activity. This case is a perfect example: the Board is acting as a watchdog to ensure non-union employees can file class action wage and hour complaints. This is likely not what the drafters of the National Labor Relations Act envisioned in 1935 when they stated that the purpose of the Act was to encourage:

the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

The law from January that prohibits mandatory arbitration of employment claims is being challenged and may be overturned. Likewise, this new Board law prohibiting mandatory arbitration of employment claims with an opt out provision is also being challenged. I do not know when a decision will be rendered or whether further rounds of appeals will be held. So, prudent employers who have policies that require all employment claims be arbitrated or that require employees to opt out of arbitrating employment claims should change their policies, at least for now.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.