Companies Seeking to Remain Union Free Must React to New NLRB Rules

On December 12, 2014, the National Labor Relations Board (NLRB) issued its long anticipated “quickie” election rules. These rules, which will govern the procedures for union representation elections going forward, will become effective on April 14, 2015.

The rules will dramatically alter the landscape of how unions organize employees in private workplaces. The most significant change is that the time period from the date a union files for an election to the date the employees vote has been reduced from about 42 days to 21 days or less. Many believe that with this shorter window from petition to election, unions will be substantially more successful in organizing than they have been in the past.

Here is a summary of the key provisions in the new rules:

Expedited Campaign Period

With the time period being shortened from approximately 42 days to 21 or less, employers will have little time to develop and implement a campaign to express their views regarding what union representation will mean to their employees and to disabuse their employees of misinformation they may have received from the union. This problem will be exacerbated by the fact that in many cases, the union will have been working with the employees for a considerable period of time before it filed its petition.

Voter Eligibility Issues Deferred to After Election

Under the new rules, disputes regarding who is eligible to vote in the election will not be resolved until after the election takes place, unless the dispute involves more than 20% of the bargaining unit. This change will leave important issues unresolved, such as supervisory status and whether particular employees fit into the proposed bargaining unit. These unresolved issues, in turn, may complicate an employer’s ability to develop and implement a lawful campaign strategy. For example, if an employer does not know whether a worker is a true supervisor for purposes of the National Relations Labor Act, the employer will not know what role that worker can play in the campaign.

Pre-Election Hearing Limitations

In general, the pre-election hearing will be scheduled eight days after the union files its petition. If the employer wants to contest the union’s right to proceed with the election or the scope of the election, however, the employer must file a position statement the day before the pre-election hearing that identifies the issues it intends to contest; a failure to raise an issue at this early stage may waive the employer’s ability to raise it later.

Also, at the conclusion of the hearing, the employer will be given an opportunity to present oral argument, but generally will not be given an opportunity to file a post-hearing brief.

Providing Employee Information to the Union

Employers will be required to provide the union with more information and do so quicker than it had in the past. First, if the employer wants to challenge the petition at the pre-election hearing, the employer must provide the union with a list of prospective voters, job classifications, shifts and work locations no later than the day before the hearing. Second, if the Regional Director nonetheless directs an election, then, within two business days thereafter, the employer must provide a second list that includes each eligible employee's name, home address, telephone number, e-mail address, work location, shift and job classification.

Given the new rules, employers should take steps now to develop and communicate a union-free message and plan for how they would respond to a union petition for an election. Employers that wait until a petition is filed to train supervisors, identify/manage possible bargaining units and develop campaign messages, likely will be prejudiced by their delay.