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The Labor Law Insider: Employer Guidance - Reducing the Risk of a Successful Union Campaign

 
Podcast

The Labor Law Insider continues the discussion in this podcast episode with Tom Godar, Tom O’Day, Terry Potter and Rufino Gaytán on actions employers should take proactively to deter unions from garnering employee support in the workplace. Shifting social issues in and outside the workplace along with significant public support for labor unions subject all companies to the risk of a successful organizing campaign, resulting in a unionized workforce. Tune in to our podcast to learn about the steps all employers should take to protect their direct relationship with employees.

    

SHOW NOTES

Voting rule changes for union elections anticipated

The current Chair of the NLRB, Lauren McFerran, previously has professed her support for expanding union election rules to include nontraditional voting methods, stating that “it is time for the Board to reevaluate its historic preference for manual elections and to consider expanding and normalizing other ways to conduct elections on a permanent basis, including mail, telephone and electronic voting.”

During the COVID-19 pandemic, nearly all union elections are being conducted by mail-in ballot or by e-voting. Historically, the Board has guarded the integrity of the union election process by requiring elections to be held onsite with employees delivering their ballots directly to the ballot box supervised by a Board agent. Two recent cases address issues of election integrity that have arisen from the use of mail-in ballots.

In College Bound Dorchester, an employer challenged a mail-in ballot due to a discrepancy between the signature on the outside of the ballot and the employee’s signature samples on file with the employer. An acting regional director overruled the employer’s challenge to the signature without a hearing. Upon review, the Board affirmed that the purpose of the signature on the outside of the ballot is to ensure the integrity of the ballots in a mail-in election. The Board ruled that a hearing on the authenticity of the signature was necessary and held that a signature on a mail-in ballot that varies significantly from known examples of the employee’s signature may raise substantial and material issues regarding the identity of the employee who allegedly cast the ballot.

Similarly, in Professional Transportation, the Board unanimously held that the offer or solicitation to collect mail-in ballots constitutes objectionable conduct in a Board election and may result in setting aside an election if evidence establishes that the solicitation affected a determinative number of votes. In this case, the union made phone calls to employees offering to collect and mail the employees’ ballots to the Board. The ruling expands on the Board’s prior rulings prohibiting the collection or handling of mail-in ballots.

The bottom line is that employers should expect unions to seek mail-in or nontraditional voting methods. Such elections can be ripe for allegations of fraud. The recent decisions addressing irregularities with mail-in ballots demonstrates that employers and unions will face irregularities and allegations of fraud more frequently than with traditional, in-person union elections.

Minimizing opportunities for successful union organizing campaigns

Unions typically engage in a continual campaign for the support of employees. Employers resistance to unionization is often based on the lack of flexibility that comes from losing the ability to adapt to changes in market conditions because of a collective bargaining agreement, the duty to bargain over potential changes to working conditions, and the direct and indirect cost of dealing with employees through a union, which is often guided by its own self-interest. Additionally, some unions thrive on division between management and workers to further their own purposes and undermine the credibility of management.  

What this means to you

To minimize a union’s opportunities to gain employee support, employers should consider the following:

  1. Get to know their employees by engaging with them to understand their concerns and communicate and share information with employees that address their concerns.
  2. Train managers on labor relations and strategies for addressing labor unrest. Managers welcome training that instructs on positive management standards and ways to recognize labor unrest and union organizing. This training can offer advice on permissible actions and statements by management to workers before an organizing campaign commences.
  3. When facing a union organizing campaign, provide additional guidance to line supervisors and midlevel managers; identify issues giving rise to the organizing campaign; provide tools to communicate with workers in small groups to discuss issues raised by union organizers and to discuss the impact of union representation; and develop a cohesive campaign to convince employees that a union is not the solution to their concerns.

Contact us

If you have questions regarding union organizing issues and management training, contact Tom Godar, Tom O’Day, Terry Potter, Rufino Gaytán or your Husch Blackwell attorney.

Tracey Oakes O’Brien, Legal Content and Knowledge Manager, is a co-author of this content.

Professionals:

Thomas P. Godar

Partner

Tom O'Day

Partner

Terry L. Potter

Senior Counsel

Rufino Gaytán III

Senior Counsel
 

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