Non-union truckers worry about impact of NLRB’s “quickie election” rules

The National Labor Relations Board has issued new representation election rules that drastically reduce the period between the filing of an election petition by a union and the holding of an NLRB election.
  
Non-union trucking companies such as FedEx Freight, Con-way and others subject to Teamsters union attempts at organizing privately are worried about the NLRB’s new rules. They say these new procedures will seriously affect their ability to oppose unionizing attempts and communicate their union-free message to their work forces during a union election campaign. The new NLRB rules are scheduled to take effect April 15.

The NLRB’s action comes at a time when unions are at an all-time low in this country. Just 6.6 percent of private sector employees are unionized, according to latest figures from the Labor Department. In trucking, approximately 95 percent of truck drivers are non-union. Among LTL carriers, only YRC Worldwide units, ABF Freight System and UPS Freight are unionized, creating about 50,000 or so Teamsters in its freight division.

  “I think these rules are as close to an apocalypse as the NLRB has come in a number of years,” Harold P. “Hal” Coxson, a nationally recognized lawyer with over 35 years’ experience in all aspects of labor and employment law with Ogletree, Deakins, Nash, Smoak & Stewart in Washington, D.C., told LM.
  
“They are a big deal,” Coxson added. “It will be a game-changer. Employers had better prepare in advance for any potential union organizing campaign. Because they won’t have time to prepare once a union organizing petition is received.”
 
Labor experts are calling NLRB’s proposal “ambush rules” designed to produce “quickie elections” that don’t give employers enough time to oppose the union’s organizing efforts.
  
Pro-business groups say the new rules will require employers to be more proactive in their employee relations programs in order to maintain non-union status.
  
The NLRB’s rule drastically accelerates the union election process, depriving employers of their right to explain to employees the impacts of unionizing,” says Randy Johnson, U.S.   Chamber of Commerce senior vice president of labor, immigration, and employee benefits. “We question the need for the regulation given that 95 percent of all elections are now conducted within two months and that unions win more than two-thirds of them. Union-friendly overreach has been the NLRB’s M.O. We expect that to continue.”
  
Under current NLRB election procedures, an election petition typically proceeds to an election in a period of about six weeks. The new NLRB rules suggest that this period is more likely to be less than four weeks, perhaps as little as 21 days.
 
This is particularly true where the parties are unable to agree to an election date in a consent election “agreement,” and the matter must proceed to a pre-election hearing. This “rush” to an election is accomplished in the new rules through a reduction in election timetables and deferral of important voter eligibility issues to post-election proceedings, experts say.
     
Once an election petition is filed, a hearing must be scheduled in eight days. Both parties then must file extensive “position statements” prior to the hearing on any legal issues raised by the petition. It will be difficult to raise new issues or modify any position taken by a party in this document, legal experts say.
  
“The rules have been changed,” Coxson said.
  
Two lawsuits challenging the NLRB’s actions, one by the U.S. Chamber of Commerce and the other by the Associated Builders and Contractors, are considered longshots at preventing the law from going into effect.
  
Gary Klotz, a senior partner with Butzel Long law firm in Detroit which specializes in labor relations cases, said come April 15 trucking companies affected by Teamster organizing efforts will be looking at a shortened election period as a result of the new NLRB rules.
  
“Exactly how much it’s shortened remained to be seen,” Klotz told LM. “That’s what they’re called ‘ambush election rules.’ If you go to a hearing, it’s going to be closer to 21 days after a hearing. The NLRB is going to be trying to do these things as quickly as they can.”

Klotz said the shortened period between filing a petition and the actual union election at a trucking terminal works against the employer in most cases.
  
“The disadvantage to any employer is because when union files election petition, that’s the height of the union’s support,” Klotz explained. “Signing a union organizing card can be because of peer pressure or misinformation or playing on raw emotions. The less time an employer has to educate the employers, the more difficult it is. The presumptively creates an advantage for the union.” 
  
The NLRB’s action comes at a time when unions are at an all-time low in this country. Just 6.6 percent of private sector employees are unionized, according to latest figures from the Labor Department. In trucking, approximately 95 percent of truck drivers are non-union. Among LTL carriers, only YRC Worldwide units, ABF Freight System and UPS Freight are unionized, creating about 50,000 or so Teamsters in its freight division.
  
Coxson offered the following tips for non-union carriers trying to fight off organizing efforts in the new NLRB environment:
-Identify the potential petitioner as early as you can. It most likely will be the Teamsters;
-Make sure employees could not be susceptible to organizing in small units, such as individual terminals that would to pick off rather than the entire company;
-Make sure you have clearly legally identified the statutory test for supervisors. You can’t contest that prior to election;
-Be ready for a hearing within seven days of union petition.
  
“We anticipate a lot of petitions coming by fax on Friday evening,” Coxson predicted. “That way, you already lost two prior to hearing just because of the weekend when you may not discover petition until Monday. Then you have to consider all issues and raise those issues at hearing seven days after the petition or you lose the right forever to waive those issues.”

In any event, trucking company officials are going to have to be extra vigilant in spotting union organizing activity because of the shortened time frame.
 
“Employers are going to have to be more prepared than they would have been without these rules,” Coxson said. “To that extent, these rules are somewhat counterproductive to unions because it’s going to trigger educational campaigns on a regular basis.”
  
Some major changes in the new NLRB election rules can be summarized as follows:
-Testimony and proofs at a pre-election hearing can be significantly limited by a hearing officer or the NLRB Regional Director. Parties will no longer have the right to file post-hearing briefs, except with special permission from the Regional Director; and
  -Issues such as voter eligibility and supervisory status will generally no longer be considered in the hearing, but deferred until after the election. These individuals will have to vote subject to challenge, and their status will be in limbo until after the election;
  
Once an election is directed, the employer will have two business days to file an “Excelsior List” (voter list) electronically with the NLRB and the union. This is a reduction from the current seven-day period.
  
The new rules not only retain the current requirement of listing an employee’s name and home address, but additionally require the employer to state an employee’s personal email address and home/cell telephone numbers if such contact information is in the employer’s possession.
  
A statement of procedures accompanying the new rules states that a Regional Director directing an election should not schedule the election “for a date earlier than 10 days” after the voter list is required to be filed. This 10-day period is likely to be the new benchmark; a significant reduction from the current period of 25-to-30 days.
  
Once the new NLRB election rules are implemented, employers seeking to maintain non-union status will have a much more limited ability after the filing of a petition to exercise their right under Section 8(c) of the National Labor Relations Act to lawfully campaign against union representation. Accordingly, employers should be proactive in implementing effective employee relations and employee communications programs now, before union authorization cards are signed and an election petition is filed.
 
Still, labor experts said the fight remains uphill for Teamsters and others to make inroads in the non-union portion of the trucking industry.
 
“We’re still in this 60-year decline of the labor movement,” Klotz said. “Union members are declining. Wisconsin, Kentucky and Missouri are among the states looking at right-to-work laws similar to what Michigan just passed. We are in longer-term, decades-long slide in union membership. Are these rules going to result in sharp uptick in union membership? I don’t think so.”