Jon Elswick/Associated Press
- Melanie TrottmanThe Wall Street JournalCANCEL
April 16, 2015 5:20 p.m. ET
Tampa lawyer Steve Bernstein, who represents businesses in labor disputes, says he has been fielding phone calls from clients at five times the usual rate, driven by businesses concerned about a new federal rule that could spur union organizing.
Businesses, Mr. Bernstein says, are worried that they are ill-prepared for what could be a spurt of union activity as a result of the National Labor Relations Board rule, which streamlines and expedites union-organizing elections.
So Mr. Bernstein, like many other lawyers and business groups across the country, is being asked for strategic advice from companies that wish to stay union-free about the effect of the rule. The rule had been in the works for years and took effect this week.
“In a nutshell, reality is setting in…and we’re getting client inquiries at a more rapid clip,” said Mr. Bernstein, who represents employers for the firm Fisher & Phillips.
The rule, which was completed in December, streamlines union elections in part by allowing certain documents to be filed electronically instead of by mail. It also generally delays legal challenges from employers—such as whether certain workers are eligible to vote—until after workers have cast their ballots.
Unions say it is needed to hasten elections they contend employers too often drag out with litigation to try to prevent a vote. Business groups, however, say it will leave employers with inadequate time to counter union campaigns and state their case to workers. The business community is worried unions will seek to hold a rush of elections in the coming weeks and months that could be easier to win.
David Jones, who owns nine restaurants in the Seattle area including three Subway franchises, said he already provides employees with benefits such as health care and has a “good” relationship with them. Still, he and his managers avoid discussing unionization with employees out of concern they’ll misinterpret what is said as an unlawful threat. If faced with a union-organizing drive, “I would explain what we’re already giving” and suggest employees ask the union what they’ll get in addition, said Mr. Jones.
NLRB General Counsel Richard Griffin said in a recent guidance memo that the rule removes barriers to fair and expeditious elections. Though he said the rule doesn’t establish a new time frame for conducting elections, some legal experts have estimated it will compress the time between when workers file a petition with the NLRB to hold an election, and when the actual voting occurs, to 25 days or fewer—nearly two weeks less than the current median of 38 days in uncontested elections.
House and Senate Republican leaders, who have joined business groups in opposing the rule, introduced a bill this week that would set a minimum time frame of 35 days for elections.
Unions say business groups are exaggerating the effect of the rule. Service Employees International Union President Mary Kay Henry said the rule will “improve the shot that working people have at voting” on unionization. Ms. Henry said she doesn’t think there will be an increase in union-election filings “per se,” but added that she is aware of organizers who have been holding off on filing for elections until the rule was effective.
“What we’re going to see is an increase in the number of working people who believe they have to join together to raise wages and create jobs in this economy,” Ms. Henry said, citing frustration among workers in the fast-food, home-health care, child care, janitorial and higher education sectors.
Mr. Bernstein said businesses wary of a union “fear that they will lose that flexibility and the culture that many employees take for granted.”
One tip he and others are giving companies: Don’t wait until a union shows up before deciding to talk to employees about workplace matters, including a company’s preference to remain union-free and the reasons why. He says employees are more likely to vote for a union when they feel alienated from their employer.
To help prepare, business groups and lawyers have been conducting in-house training sessions, hosting webinars and conference calls, and sending advisories to employers. Many are telling employers to proactively assess and address any workplace grievances they can.
They’re also advising employers to remind employees about the value of what the company already provides, and to not be shy about sharing constraints in the face of rising costs such as health care.
The U.S. Chamber of Commerce, one of several trade groups challenging the rule in court, held a briefing call for its members last week. The National Federation of Independent Business posted advice online with possible steps for its members. “Train managers and supervisors on labor management issues,” the group advised, such as the employer’s position on unionization, early signs of union activity, and what’s lawful to say.
Business groups note unions already win about two-thirds of elections.
The rule “really tilts the playing field against employees and employers in trying to understand the consequences of a union-organizing campaign,” said David French, the National Retail Federation’s senior vice president of government relations.
Yona Rozen, the associate general counsel of union federation AFL-CIO, said employers will still have adequate time. “In the majority of the organizing drives, management is well aware long before the petition is filed…so there’s plenty of time to communicate,” she said.
Write to Melanie Trottman at firstname.lastname@example.org
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