NLRB Rules Changes Could Tilt Balance of Power

"It is probably the most liberal, pro-labor board in the 30 plus years I've been doing this," says James G. Trivisonno, president of Detroit-based IRI Consultants, who predicts that the board will adopt most – if not all – of the proposed changes. Those changes, he says, provide organized labor with side-door access to many of the provisions unsuccessfully sought when the Employee Free Choice Act fizzled in Congress last year.

One proposed change, Trivisonno says, would require employers to provide to union organizers before an organizing vote a list of employees, their worksite locations, the shifts they work, and their job classifications.

Another proposed change would facilitate organizing smaller "specialty" bargaining units. "For example, a group of lab techs may want to organize versus an entire group of technical employees at an acute-care facility," Trivisonno says.

The biggest proposed rule change, Trivisonno says, would reduce to a matter of days the amount of time between an announced organizing campaign and a representative election. In effect, he says, union organizers could spend months quietly laying the groundwork for a representative election, before "springing" an election notice on unwitting employers.

"The unions' approach is to surprise the employers with a petition and have the elections in a few weeks before the employer has had a chance to react," he says. "With quicker elections it is easier to get a group of employees revved up about an emotional issue and have an election in two or three weeks. The employers disadvantage is about communicating the rest of the story." 

If the proposed rules are approved, Trivisonno says, employers must be even more vigilant and proactive about communicating their arguments against unionization to employees, even doing so ahead of any organizing effort. If you wait until you get a notice of election, it's probably already too late.  

"The way that employers prepare for organizing drives and the way they conduct counter union organizing campaign is going to be very different under these regulations," Trivisonno says. "If you have a large acute-care facility, to get a letter drafted, approved, run through legal, operations and public relations sometimes can take a week. You may have nurses who only work once or twice a week. How do you communicate with these people? The unions can make claims that don't have to be accurate and the employer has to correct them."

"So, to the extent you can, you should have those documents done in advance and your positions thought out should you receive a petition," he says.

More and more, he says, social media, including Web sites, Facebook, Twitter, blogs, and employee intranet portals are going to play a critical role in getting the message out. "The unions are well ahead of most employers on that, way ahead, because that is where the battle is going to be fought down the road," Trivisonno says. "National Nurses United and Service Employees International Union have been out front on that for years, but a lot of employers, a lot of consultants, don't get it yet."

He suggests creating an ominous sounding "dark Web site" that provides the employers counterpoints to union arguments, to be activated at the first whiff of an organizing effort. "Keep it in your back pocket should you need it, so you can drive information that way. Establish Facebook and social media channels now because they are going to help you when you need them," he says.

Of course, the best defense against a union organizing bid is to engage your employees, treat them fairly, ensure that they are safe, happy and satisfied at work, ask for their input and act on what they say, and address their concerns. If your hospital is the subject of a "surprise" notice for a representative election, it's your fault and not the union's. It's hard to sneak up on hospital leaders who – on a daily basis – sincerely engage the people they work with as professionals, colleagues, and friends. 

As I have said before, employers get the unions they deserve.