When 30% of employees at a facility sign an authorization card, a union can go to the National Labor Relations Board and petition for a secret ballot election. Typically, the election occurs within seven weeks after the NLRB accepts the petition.
But comments attributed to Mark Pearce, an NLRB board member, have stirred concerns in management ranks that the board is attempting, in the words of Frank Saibert, an employment attorney with Ungaretti & Harris, to "achieve through rulemaking or adjudication what it could not get through legislation, particularly the Employee Free Choice Act."
At issue is a remark by Pearce, an Obama Administration appointee, at Suffolk University on October 21. Asked what he thought about the Canadian model for union elections, which may occur in only 5 to 10 days, Pearce allegedly expressed support for a shorter time frame. In a follow-up with IndustryWeek, Pearce said that given the large number of unfair labor practice charges filed or associated with many elections, it's in the best interest of workers that the time between the petition and the election be as brief as practical. However, he said he is not endorsing any particular model or any particular time frame at this time.
Saibert says reducing the typical time for election campaigns from 42 days to 10 days or less puts employers at a serious disadvantage in terms of making their case against union representation. "Remember, up until the time that the union goes to the NLRB with its petition, it is doing everything behind the scenes and the employer doesn't know about it," he says.
Saibert points to other actions taken by NLRB which he believes could negatively impact employers. In particular, he cites two memoranda issued by NLRB's general counsel, Lafe Solomon. On September 30, Solomon issued Memorandum GC 10-07, which makes it a priority to ensure that "effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces." The memorandum sets out procedures for these remedies, including a "vigorous" commitment to pursuing injunctive relief against employers. Saibert argues that such injunctions represent a "preliminary step to freeze me in my tracks and to put these people back at work even though I man have good reason to fire them..."
The other memorandum, GC 11-01, issued December 20, notes that discriminatory discharges "are often accompanied by other serious unfair labor practices such as threats, solicitation of grievances, promises or grants of benefits, interrogations and surveillance." Solomon lays out remedies for each of these employer actions designed to "recreate an atmosphere that allows employees to fully utilize their statutory right to exercise their free choice."
Given a more active NLRB, Saibert says employers should urge their trade associations to lobby Congress to reign in these interpretations through oversight. He also urges employers to develop a plan now for dealing with a possible unionizing campaign and to take traditional measures to promote job satisfaction such as keeping lines of communication with employees open and paying a competitive wage.