By: James B. Sherman, Esq.
As a labor and employment law firm that represents management, our firm has for many years tracked union organizing petitions and election results from the National Labor Relations Board regional offices throughout the upper-Midwest. We prepare monthly reports for interested employers, tracking which unions are most active in organizing at any given time; the precise locations of where union organizing is going on; industries being targeted by unions; and their success rate (wins or losses) in NLRB sponsored elections. Having this type of information on a regular monthly basis can be used as a key part of the overall strategy of employers aiming to become or remain union free. Of course, a larger commitment to union free status by top management including, where necessary, the determination to actively campaign in any union election is also paramount to success. The failure of employers to become actively involved in opposing unions can lead to disastrous results, as illustrated by one particular Tally of Ballots we came across while doing the April edition of our Wessels Sherman NLRB Election Report.
The document we obtained from the NLRB showed the results of an election to determine whether the Longshoremen's Union should be certified to represent a bargaining unit of 15 drivers at a local cartage company. What was striking about the tally of votes was out of 15 eligible voters only three votes were cast in favor of the union and yet the Longshoremen were certified on the tally as the winner of the election! How can this be, you ask? Doesn't the union need to win by a majority of votes in an NLRB election? The answer is that of the unit of 15 employees eligible to vote in this particular election, only three showed up to vote, all of them casting ballots for the union. Perhaps the biggest tragedy of this lopsided 3 - 0 win for the union is that the NLRB will now likely certify the Longshoremen's Union as the "exclusive bargaining representative" of all 15 drivers in the bargaining unit, including all 12 drivers that did not bother to show up to cast a vote and may oppose the union!
At a time when powerful union lobbyists are pushing for "card check" certifications, project labor agreements and other means of skirting elections altogether to gain representative status (e.g. EFCA legislation that is currently on ice with the present Congress, but remains a key objective for unions), it is more important than ever for employers to understand that NLRB elections can be an effective means of determining true employee free choice, but only if employers participate in the process and exercise their lawful right to actively campaign. To be sure, staying within the lines of what is legal campaigning can be tricky and requires knowledge of the complexities of federal labor law, but the alternative of sitting back in the face of union organizing or aggression is risky business. Just ask the 12 drivers who failed to vote in the above election example - you'd probably have to go through the Longshoremen, their new and "exclusive" legal agent.
This example underscores the importance of stressing awareness, education and, when necessary, actively and creatively campaigning to oppose unions for those employers who wish to remain union free. Because knowledge is power, ask about our monthly Union Election Report. For advice on what employers can do in the ordinary course of business to remain union free, or for experienced legal advice and counseling in the face of union organizing or an election, contact attorney James B. Sherman, founding and managing shareholder of Wessels Sherman's Minneapolis office. Mr. Sherman has over 20 years of experience representing exclusively employers in all aspects of union organizing and counter-organizing, as well as NLRB proceedings and hearings. Reach him at 952-746-1700 or by email - jasherman@wesselssherman.com
