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According to the revised NLRB rules, all questions about a voting unit (Who is in it? Who is eligible to vote?) will be deferred until after the election. Ballots will be counted before those questions are answered. Only if they affect more than 20% of the employees voting will they be considered.

Dealing With NLRB’s Ambush Election Rules

Feb. 18, 2015
The federal labor-relations agency has changed the rules on unionization votes, and metalcasting managers should not be caught unaware when the organization effort starts. Notifications and position statements Eligibility and elections Gainsharing goals

Foundries and diecasters face new problems avoiding union-organizing efforts because in December the National Labor Relations Board finally issued its “quickie election” rules governing representation elections, to take effect next April 14. These rules cut the time between the filing of an election petition and the election to 14-21 days from the current median of 38 days (see graph.)  This means metalcasting companies will have very little time to campaign to persuade their employees to vote against unionization.

The graph shows the median number of days from the date of a petition to the date an election, with “All elections” shown in blue, “Stipulated” elections in green, and “Contested” elections in magenta.

Here are the most important new rules, their practical results, and advice for metalcasting managers to avoid union elections entirely:

Notification Compliance

Rule: Management must give the NLRB the names, job titles, shifts, phone numbers, home and email addresses of workers within two days of notification of a union organizing petition.

Practical results:  Since most elections occur in small companies -- the median size of voting units in elections is now about 25 employees – the owner faces an almost impossible set of tasks.

The first requires a small casting company’s often understaffed “human resource department” -- sometimes only a cleric who just does the weekly payroll -- to scramble to put together the required list: names, job titles, pay rates, shifts, addresses, phone numbers, and email addresses. Personnel files sometimes do not contain accurate home addresses because workers often move and don’t report their new ones. Of course, failure to give the NLRB an accurate list of addresses is an Unfair Labor Charge.

This early list gives organizers more time to contact more employees, make home visits and email them to further their unionizing efforts. Today, it is unclear whether the NLRB wants workers’ home or work email addresses. If the latter, that raises new issues due to the NLRB’s new efforts to restrict companies from policing what workers say on their internal email systems.

Position Statement

Rule: The management must file a complete statement of its position with the local NLRB office within seven days of the filing of a petition. A “statement of position” is the company’s take on all questions about the election. It covers all potential issues about the election (appropriate unit, who is or isn’t a supervisor under NLRB rules, who should vote, date and time of the election, etc.)

Practical results: Because the owners of small foundries and diecasters often wear multiple hats, have no internal resources with labor law expertise, and don’t know what a “statement of position” is, they often phone their own personal attorneys for help.

These attorneys, whose experience typically covers wills, probate, and real estate, may have little experience in labor law, so they may tell the bewildered metalcasters to find a labor lawyer. Finding an experienced labor lawyer can take another day or two, and the process of discussing the metalcaster’s situation, brainstorming what to do, and composing a statement of position takes even more time, but the NLRB’s clock is ticking.

Most knowledgeable attorneys are conservative and want to protect their clients. So, they will file a lengthy statement raising every imaginable question. They know that under the NLRB’s new rules, if a question or issue is not raised in the initial statement, it cannot be raised in any later proceedings. Rather than speeding elections, this delays them, as hearing officers sort through all the boilerplate the attorneys have raised. This takes the NLRB’s hearing officer time and effort. If anything, this will delay elections.

While all this goes on the casting company owner must meet production schedules, worry about porosity, handle customer orders and complaints, and deal with his normal busy work. And the NLRB’s clock is still ticking.

Wide Open Eligibility

Rule: All questions about the voting unit — who is in it and who is eligible to vote — will be deferred until after the election. Ballots will be counted before those questions are answered. Only if they affect more than 20% of the employees voting will they be considered.

Practical results:  Quite often, foundries and diecasters ask supervisors to help in their election campaigns, making handouts and asking workers to back the company by voting “no union.” The company risks another unfair labor practice if it asks a person to make anti-union handouts and the NLRB then rules that person is not a supervisor. Thus, nervous employers will tend to avoid using supervisors to campaign, hobbling their efforts to win their election.

Second, workers often ask just who will be in the union? Will it be just their department or shift, or does it include office staff as well? To many workers, that issue is critical. Without knowing who their fellow union members might be, it’s like buying a pig in a poke.

Condensed Campaign

Rule: The hearing officer will be required to rule on pertinent questions immediately and set a rapid date for an election, often within 10 days to two weeks. That gives a company little time to argue its side of the story.

Practical results:  Because only about 7% of private-sector employees are union members, relatively few of them know unions have a downside as well as an upside. There are strikes, union dues and assessments, fines, and trials, where union bosses are judge and jury. Wages and benefits can go up, down, or stay the same in negotiations. Just as unions call strikes to pressure companies to meet their demands, companies lock out employees to pressure them to agree to company demands. Strikers can be permanently replaced in economic strikes. Obviously, these topics are not emphasized when organizers pitch unionization to employees.

Employees have the right to know the full story when they are voting. It takes more than a week or so to tell the full story and answer the questions workers invariably have, but with NLRB’s new, compressed timetable for elections, companies will have little time to inform their workers about all of the facts before they vote.

Avoiding Elections

Rule: An employer can never lose an election that is not held. Union organizers rarely cold call, seeking likely companies to unionize. Almost invariably, it is the employees who call union organizers because they feel the need for somebody to speak for them to management, and for protection against management abuses

Practical results:  The best way for a metalcaster to avoid the certain expense and disruption of an election and the potential cost of a union with higher wages (possible), and restrictive work rules and costly grievances (certain) is to treat employees fairly, openly, and honestly, so they don’t feel they need a union. But how?

Many executives remain in the dark about employees' sentiments until a union petition is filed. Workers’ perceptions of fair treatment by employers must be monitored accurately by metalasters who wish their operations will remain non-union. (see Will Your Employees Go Union?)

The issues that cause workers to seek unions revolve around perceptions of favoritism and unfair treatment, often by first-line supervisors. Since most employees see their immediate bosses as the company, disrespect, unfair treatment, and supervisory favoritism are seen by workers as being the entire company’s attitude.

Executives at most foundries and diecasters rely upon subordinates to report on morale. Not surprisingly, few supervisors or managers report the petty abuses or favoritism they themselves practice. Standing alone, one or two abusive incidents may not be important. But as they accumulate, they impact employee attitudes severely.

Obviously, training supervisors how to listen and respond to employee concerns is important. Many employers use “canned” training programs, taken from the Internet. Most deal with generalities, not an individual company's specifics. Asking a knowledgeable trainer to customize training for a metalcaster’s specific problems takes a little time, but the results are worth it. Then, evaluating supervisors not only on their production but also on their “people” skills reinforces the training.(see “Molding Supervisors to Fit Your Profitability Pattern)

Uncovering Employee Attitudes

Some metalcasting execs use fast, computerized attitude surveys, thinking they will uncover workers' concerns. This doesn’t work. For example, workers may be asked to score various factors on 1-to-10 scale, but these numeric scores do little to reveal why employees believe as they did, nor what remedial efforts should be taken.

Only a handful of executives take the time to obtain unfiltered views of their employees’ attitudes by having audits conducted by skilled outsiders conducting face-to-face interviews in carefully structured groups. Outsiders are especially effective because workers are reluctant to speak openly to management, for fear of retribution. However, employee concerns that lead to unionization cannot be handled until they are uncovered.

Dealing with the employee concerns quickly is important. Interestingly, many of them revolve around workers’ inability to do their jobs as well as they would like. Inadequate tools (grinding wheels in finishing), poor working conditions (poor ventilation near the furnaces), faulty scheduling (heavy molds ahead of light ones on the pour floor) all impede productivity and frustrate workers. Since employees have many practical ideas about improving productivity, it pays to train supervisors to listen to them in a systematic way and respond. When employees see that managers cares about productivity and quality, they will too. Finally, providing incentives to reward workers for better overall performance is a powerful way to reinforce labor management bonds. Employees see their interests and those of managers in better performance – and productivity -- are identical (see Motivating Employees: What Works? What Doesn’t Work? ). When these efforts are done effectively, foundries and diecasters won’t have to worry about unions. When are you going to start?

Dr. Imberman is president of Imberman and DeForest, Inc., management consultants specializing in employee audits and communications, Gainsharing Plans, and other pay-for-performance programs. Contact him at tel. 847-733-0071 or [email protected].