On December 12, 2014 the NLRB adopted new union election rules, claiming that they will “modernize and streamline the process for resolving representation disputes.” These rules will become effective April 14th of this year.
The real impact of these sweeping changes, commonly referred to as “quickie” election rules, will be to facilitate union organizing efforts and reduce the time an employer has to discuss the pros and cons of unionization with its employees. The rules include the following changes:
- Election petitions and other documents will be electronically filed with the NLRB.
- Employers will be required to furnish the union and the NLRB a list of employee names along with personal employee information such as the employee’s personal phone number, home address and email address, if the employer has them.
- Employers must identify all the issues in dispute of the election in a position statement, which must be submitted just seven days after notice of a pre-election hearing. Any issues not included in the position statement will be waived.
- Issues such as employee eligibility to vote or inclusion the voting group may be deferred until after the election is held.
- Individual Regional Directors will have discretion to determine whether post-hearing briefs may be submitted.
- The current automatic stay of an election that issues when a party requests review of a pre-election hearing decision will be eliminated.
The net result of the rules will be to significantly reduce the time it takes to hold a union election once an election petition has been filed. Previously, most elections were held within six weeks, but under the new rules, it could take as little as two to three weeks for an election to be held. As discussed in a previous post, the new rules will likely hinder an employer’s ability to fight union gerrymandering regarding the employees participating in a unionization vote. Further, employers will have far less time to communicate with their employees following an election petition and before the vote is held.
With the April 14 effective date looming, both the House and the Senate have weighed in on the issue, passing joint resolutions expressing disapproval of the new rules. The text of Senate Joint Resolution 8 can be found here. The White House, however, has opposed the resolutions, claiming that they seek to “undermine a streamlined democratic process” for workers to vote on union representation, and has threatened to veto them if they make it to President Obama’s desk. Since it is unlikely that either the House or the Senate has enough votes to override the likely veto, the resolutions will likely be only symbolic.
The rules have also been challenged in court. This past January, a group led by the U.S. Chamber of Commerce filed suit in D.C. Federal District court, and a group of business associations also filed suit in the Western District of Texas, with both lawsuits seeking to block the new rules. It remains to be seen if either suit will move forward quickly enough to stand in the way of the April 14 effective date.
With the shortened time from petition to election, it will be more important than ever for employers to be ready to respond. Some important steps employers can take now are:
- Have updated employee lists ready. The new rules call for quickly turning this information over to the union.
- Train all management and supervisory employees regarding appropriate actions and communications during a union campaign, and choose a management team to respond quickly to union campaigns and a possible election petition.
- Understand which unions are likely to target the company, and evaluate the potential breakdown of bargaining units.
- Develop strong relationships with employees. Reevaluate your wages and benefits to ensure they are competitive for the industry and region and provide an opportunity for employees to have a voice. Listen to and address employee concerns.
While the legal challenges to the new rules continue to move forward, employers are advised to act now to reevaluate their susceptibility to union organizing, and develop a proactive strategy to ensure they are not playing catch up if they are hit with an election petition.