Now that the National Labor Relations Board is at full staff – three Democrats and two Republicans – it has begun to act in earnest.  In addition to starting to issue a litany of pro-union decisions, the NLRB “re-issued” its proposed new union election rules on February 6, 2014 for notice and comment.  These rules were previously issued for the same purpose back on June 22, 2011, but after the Board adopted a portion of them in December of that year, the modified rules were struck down by federal courts on procedural grounds. 

With the NLRB now having 5 confirmed members, no group will be able to object to the rules on procedural grounds.  However, there are likely to be substantive challenges to the rules.  Remember, the Board received 65,000 comments in response to the rules when they were first proposed.  If these comments were any indication, one of the substantive challenges likely will center on the lack of due process afforded to employers if the rules go into effect as proposed. 

For those who have forgotten (or blocked out) the impact of the rules – which have been described in certain employer circles as “ambush” election rules – here is a brief summary of what would result if they are implemented: 

  • The electronic filing of petitions.
  • Pre-election hearings within 7 days after the date of the petition (although virtually all issues will be pushed to a post-election forum to prevent any delay in the election).  Currently, hearings typically occur within 10-14 days of the petition.
  • Detailed position statements within 7 days of the petition, or a waiver of any and all rights to challenge the voting (bargaining) unit.  In the statement, the employer must specifically address the NLRB’s jurisdiction; set forth a position on the petitioned-for unit; state if the petitioned-for unit is not appropriate, and if not, explain why and set forth what is an appropriate unit; describe proper exclusions from the unit, and; set out any election bars.
  • Unless the employer identifies an eligibility issue involving 20% or more of the voting unit, all issues regarding eligibility to vote will be deferred until after the election.  In other words, those disputed individuals will vote subject to a later challenge. 
  • Hearing officers will have unfettered discretion to choose the issues they will decide,  what evidence they will allow, and whether they will allow briefs to be submitted.  That means employers may not have much of an opportunity to build a suitable record for appeal. 
  • The elimination of the request for review from the NLRB prior to the election, with the effect being that most litigation (and appeals) will occur after an election has occurred.  Even then, appeals to the NLRB will be discretionary.
  • In sharing the voter eligibility list (Excelsior List), the employer will be required to provide the names, addresses, phone numbers, e-mail addresses, work location, shift and classification of eligible voters within 2 days after the direction of an election (instead of 7 days currently, during which employers must produce names and addresses only).  It is unclear whether e-mail addresses include work e-mail addresses, and if so, what impact this may have on the employer’s ability to preserve its computer network for business purposes.
  • The requirement that the Board be able to communicate directly with the voting unit. 

Perhaps the largest employer concern is that the timeframe for elections would be reduced to a range of 10 to 21 days following the date of the petition.  Currently, the NLRB’s target date for an election is 42 days from the date of the petition, the median time for an election is 38 days, and 94% of all elections are conducted within 56 days.  

These proposed rules – when coupled with the Board’s decisions like the one in Specialty Healthcare (making it easier to establish micro bargaining units) – exacerbate the threat of unionization for employers.  Using these rules, unions can target a specific classification, move swiftly to an election, and if successful, represent a unit of employees in your workplace in less than 30 days.  Welcome to the world of collective bargaining.  

Regardless of the objections lodged, some version of the NLRB’s new election rules will probably be implemented.  With that in mind, what can/should you as an employer be doing now?  In the event of a union organizing campaign, an employer’s ability to communicate with its employees is going to be limited.  If an employer waits until it hears of union activity, or worse, until it receives a petition, the employer will be so far behind the eight ball, it’s not likely to be able to effectively challenge the union under the proposed time frames.  Therefore, like any other business strategy, an employer needs to have plan to place, ready to execute, in the event an organizing effort is directed at its employees.  Here are some things you can do as an employer to stay ahead: 

  • Make sure your policies are up-to-date and pass legal scrutiny – solicitation, confidentiality, social media, etc.  All of these and others are being harshly scrutinized by the NLRB to provide the maximum protection possible to employees, and to give employees the greatest latitude possible in exercising their rights under the NLRA.
  • Cultivate a work environment based on positive relations and open communication. 
  • Assess your workforce now for potential bargaining unit issues, including who your supervisors are.  What are the likely units?  These need to be considered beforehand because there will be very little time to consider the issue once the petition is filed.
  • Assess what parts of your workforce may be particularly vulnerable to organizing and why; then, take steps to try and rectify that vulnerability.
  • Train your supervisors about the signs of union organizing and how to legally respond to union activity.
  • Know who your core team of communicators will be with your employees in the event of an election, and have an idea of the critical message points that will need to be addressed
  • Have an outline of the anticipated sequence of events and activities to be undertaken 

While unions have been and continue to be on the decline over the years, these new election rules have the potential to reverse – or at least stall – that trend, and employers need to be proactive in order to try and stay ahead of the curve.  As Winston Churchill famously surmised, “Danger, if met head on, can be nearly halved.”  Sure, that’s not as good as eliminating the risk altogether.  But it’s certainly better than being an employer in the NLRB’s headlights, suddenly frozen and caught off guard before meeting your inevitable fate.

Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
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