New regulations from the National Labor Relations Board may soon cause an upheaval in North Carolina workplaces. These “Ambush Election Rules” make union organizing faster and easier.
First, a short history. For decades, unions wishing to sign up members and bargain a contract followed a set process. Thirty percent of employees or more signed union cards. Next, an agency decision was made on who could vote and be covered by a future contract. Then, both employer and union had time to make their case to voters in a campaign. A vote was held on company property with results that day. This chain of events took 30 to 60 days (averaging about 42).
The problem from the union perspective is they lost most contested elections. When employers resisted, unions tended to lose, especially in the Southeast and particularly in North Carolina.
Employers say unions lost because unions had little to offer. Once a company explained what unions can do, cannot do, have done, have not done, and what they cost, most employees in a reasonably good workplace opted to stay union-free.
Unions say they lost most contested elections because employers drug things out, filed legal challenges to voting groups, threatened employees and generally obfuscated the process.
My bias comes from many years as an employer advocate. I have met some good union officials and some bad employers. No one has a complete lock on virtue or vice. But these new rules are tilting the playing field in a very different direction and could damage our workplaces.
Here’s why. In the name of shortening and simplifying elections, 15 to 20 days may become the new norm from election-request to election-day. Much of that reduction comes from delaying the disputed “who can vote” decisions until after a vote. Is this group leader a supervisor and ineligible to vote? Is this assistant department manager a supervisor and eligible to help make the employer’s case to employees? Is this person a voter when they work in this group only some of the time? What about part-time and seasonal workers? Has the union sought an inappropriate group of employees that includes security personnel? Employers bear the legal and practical weight of this ambiguity.
Other reductions in time come from disgorging employee home contact information much earlier and ignoring the need for campaign time. Without a labor lawyer on site, compliance and success become very difficult for smaller employers. Less time for educating employees means more wins for unions.
It is now easier than ever to get a union but just as hard as ever to get rid of a bad one. This is a big decision affecting the future direction of a workplace.
Add to this “ambush election” process a recent NLRB ruling on “micro-units” and unions now hold a powerful hand. Unions can cherry-pick a small, sympathetic subset of employees and rush toward voting day with less employer opposition.
The open questions are whether unions will take full advantage of these new tools and whether it is the employees or the employers getting ambushed.
Bruce Clarke, J.D., is CEO of CAI, helping more than 1,000 North Carolina employers maximize employee engagement and minimize employer liability. For more information, visit www.capital.org.