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Non-union truckers brace for new NLRB rules allowing “ambush” union elections

By John D. Schulz, Contributing Editor
May 16, 2014

The National Labor Relations Board (NLRB) is in the final step of issuing contentious, labor friendly regulations that would create sweeping changes to the way the union organizing elections are held.
 
Non-union trucking companies such as FedEx and others say these rules amount to what they are calling “Ambush Election Rules.” If adopted, these rules would:
-reduce the time from petition to election day from the current target time of 42 days to as few as 19 days or less;
-require employers to divulge much more personal information about voters such as personal phone numbers and e-mail addresses;
-require employers to make important decisions about who should be able to vote in elections in very short periods of time; and
-remove the right of parties to challenge decisions about who is eligible to vote until after the election is held
 
These so-called “quickie” elections are seen as biased against employers, which would have much less time to fight back against union organizing efforts through education of employees, which often in trucking are not in any single location at any given time.
 
The proposal is backed by three of the five NLRB board members, including chairman Mark Gaston Pearce. The proposal is angering so many businesses that a coalition of 141 businesses groups, including the American Trucking Associations, has been formed to oppose or at least delay it. The proposal has drawn in excess of 75,000 public comments filed at the agency.
 
“These are modest, common-sense changes that preserve due process and strengthen the secret ballot process,” Teamsters union president James P. “Jim” Hoffa said in the union’s comments. “They update election methods so they are compatible with today’s technology.”
 
Representing the pro-business viewpoint, ATA General Counsel Prasad Sharma said in its comments: “The board’s proposed rule represents a results-oriented tipping of the balance of employer and employee interests in favor of the unions that contravenes the direction set forth by Congress in the (National Labor Relations Act) and that addresses too sweepingly an alleged problem in an area where the board has consistently met its targets.”
 
Currently, unionized truckers (mainly belonging to the Teamsters union) amount to about 5 percent of total employees at the 700,000 trucking companies registered at the Department of Transportation. That figure is down from around 90 percent prior to the Motor Carrier Act of 1980 that economically deregulated the industry.
 
The issue is such a hot button among non-union carriers that the North American Transportation Employee Relations Association (NATERA) recently conducted a webinar on the subject.
   
“It’s a bear trap of rules out there,” says Thomas Grow, a labor attorney with FedEx Corp., which has more than 155,000 non-union employees worldwide.
 
Originally proposed in 2011, these NLRB rules were reintroduced earlier this year. They’re designed to reduce the amount of time between when a union organizing petition is filed and when an actual vote takes place.
 
“In my opinion, this rule is all about keeping employees from getting accurate information,” Doug Topolski, a labor and employment attorney (and a former union organizer) with Ogletree Deakins, a white glove law firm in Washington.
 
One of the key components of the new rule is timing. Previously, the old rules relating to conducting union organizing elections said an election should be held within a 42-day window from when the petition is filed to when the election is held.
 
The new rule speeds up that process. It says “the regional (NLRB) director shall schedule the election for the earliest day practicable consistent with these rules.” Non-union truckers say this is unfair, and makes it virtually impossible for carriers to fight back against union organizing efforts.
 
Topolski says because of mandatory procedures involved, the likely effect would be to reduce typical election times from the current 42 days to about half that.

“Ambush elections can happen just that quickly,” Topolski says.

Electronic filing of petitions also would be allowed, compared to the current rule of requiring in-person delivered petitions. That is seen by labor experts to be favoring unions at the expense of employers.
 
Trucking is what labor experts call “a targeted industry” for union organizing. Non-union carriers are fighting back. They are being advised to seek out what they perceive to be “problem supervisors” or “problem employees,” who they say are more prone to union activism. Also, carriers with any safety or wage and benefit issues are advised to settle those, in order to make the company less attractive to union organizing attempts.
 
Communication is the key to fighting organizing activities, experts say. Companies are advised to communicate with their employees in every way possible—in face to face meetings, email, texts, web sites, in-house broadcasts, video, mailings and by using trained rapid response teams.
 
Trucking companies are advised to do a need assessment, but to do it smartly. There are also things they cannot do to fight unionism, and it goes by the acronym “TIPS,” which stands for:
Threaten
Interrogate
Promise
Spy
What carriers can do goes by the acronym “FOE,” which stands for:
Facts
Opinions
Experiences

Labor relations experts say carriers should formulate positive employee relations training and use of positive buttons, badges and T-shirts is encouraged to create a positive work environment.
 
Besides the NLRB proposal, non-union carriers are worried about actions at the Department of Labor, which is considering so called “Persuader Rules.”
 
These rules, if implemented, will make it much more difficult for employers to obtain and use vital legal guidance they need to understand and comply with what they claim are counterintuitive laws applicable to union organizing campaigns. They say they could be liable for what they see as drastic penalties for even inadvertent violations.
 
Labor attorneys in the trucking industry say these proposed changes will unnecessarily invade employee privacy, take away employees’ rights to timely obtain the information they need to make an informed choice in a union election, and diminish a trucking company’s right to have meaningful input in the entire election process.
 
Non-union trucking executives say these proposals will make it difficult if not impossible for companies to do what it needs to do to educate employees about the choices and options they have.
 
For instance, these proposed Labor Department rules will make it much harder for carriers to provide supervisors and other company representatives with the kind of timely training and information they need to be sure employees make informed choices in an atmosphere free of accidental violations of the law.
 
After getting more than 7,000 comments on the matter, the Labor Department said on March 6 it would delay issuing the rule until mid-year.
 
Carrier executives say the time to prepare for these changes is now. Labor attorneys are advising carriers to develop an action plan now based upon its operation, the needs of its employees and business, and the corporate culture and personality in which it operates.
 
They say there is no “cookie cutter” solution to fighting union organizing efforts, experts warn. Rather, they should take precautions based on their own particular situation.
 
Currently only 6.4 percent of private-sector employees belong to unions, slightly higher than the percentage of the trucking industry that is unionized. Non-union carriers say they are determined to keep it that way.

About the Author

image
John D. Schulz
Contributing Editor

John D. Schulz has been a transportation journalist for more than 20 years, specializing in the trucking industry. He is known to own the fattest Rolodex in the business, and is on a first-name basis with scores of top-level trucking executives who are able to give shippers their latest insights on the industry on a regular basis. This wise Washington owl has performed and produced at some of the highest levels of journalism in his 40-year career, mostly as a Washington newsman.


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