Labor Relations Insight July 2015

by | Jul 24, 2015 | Labor Relations Ink

One of my audience members became so bored and distracted that he shoved both his hands down the front of his pants. And that’s when I knew I may have bitten off more than I could chew. Maybe I should back up a bit. I volunteered to help my daughter’s school start a debate team this year. I know what you’re going to say – just think of it as my nerdy version of playing catch with my kid. In order to get these middle schoolers up to speed the speech teacher and I decided to hold a debate camp. Since the speech teacher doesn’t know much about debate we decided I’d teach the class. Here’s the thing. I love to teach. Not to brag, but I’ve taught classes and given keynotes to hundreds of audiences all over the country. I’m don’t pretend to be the best teacher in the world, but I get very solid reviews whenever I teach or speak. However, I’ve never taught middle schoolers. And when the speech teacher suggested we add a couple of incoming fourth graders to the class I stupidly said something like, “Sure – the more the merrier!” It turns out that fourth graders don’t really find debate that interesting. And once you’ve got a fourth grade boy uninterested and bored it is hard to predict exactly what he might do. In the whole scheme of things quietly warming his hands is probably pretty mild. But it sure is distracting. This experience emphasized an important lesson for me. You can’t expect the smaller and less sophisticated audience members to be ready for the same stuff that the more sophisticated ones can handle. This is exactly the same lesson unions are exploiting under the new ambush election rule. Check this out: july-ink-unit-size This chart shows the latest numbers from the first quarter under the new ambush election rule. Petitions remain up around 15%, but what is most interesting to me is where these new petitions are being filed. Unions are hitting very small units (10 employees or less) with virtually all these new petitions. All other categories remain basically flat compared to the prior 4-year average. The bottom line: you are more likely to get hit with an ambush election if you are a very small employer. It remains to be seen whether this trend will continue, but it has held consistently over the last three months. We are also beginning to get a picture of election length under the ambush rule, using data and not just anecdotal information various board regions. The short answer: the average ambush election occurs in 28 days. The chart below further explains how these are breaking down: july-ink-election-days These numbers lag a bit. You don’t know the final result until the election results go final, and that takes at least 7 days after the election if not more. Then you sometimes have to wait for the Board region to answer a FOIA request which can delay things even further. Nevertheless, we have nearly 200 election results covered here which is a pretty solid sample. Employers have lost about 10 campaign days on average since the ambush election rule went into effect. This is significant – it slices campaigns by about 25%. This isn’t as bad as many feared (but this number could very well shrink as the Board regions get more comfortable with the rule). Nevertheless, for a small employer these 10 days are crucial. Shrinking elections isn’t the only problem for small companies. The biggest changes to the rule impact the very beginning of the process, where an unsophisticated employer is very likely to be caught completely off guard and without skilled help. Small employers (and more important their employees) are a lot more sophisticated than my fourth grade debate student. But when it comes to rapidly responding to this new ambush rule they are definitely not ready. This is the true problem with the ambush rule. It hurts the companies and employees least able to handle it. The best solution would be to exempt these small employers or small units from the Act altogether (just like many other employment laws). Since that isn’t likely anytime soon we will just have to hope that small employers learn about the rule in time to mount a more sophisticated response. If you happen to know a small employer, please forward this article to them!    

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