NLRB’s New Quickie Election Rules May Tilt Scales Towards Unions

balance-147053_1280The “quickie election” rules were originally proposed two years ago, but were narrowly rejected by the National Labor Relations Board (NLRB) when the majority of its five members were appointees of President George W. Bush.  Today the majority are President Obama appointees, and the rules were adopted 3-2, along party lines.

From the majority’s perspective, the new rules will allow the NLRB “to more effectively administer the National Labor Relations Act by modernizing its rules in light of modern technology, making its procedures more transparent and uniform across regions, and eliminating unnecessary litigation and delay.”

Here’s what will change on April 14.

Today, employers only need to supply employee addresses and fax machine numbers to union organizers.  Under the rules, they will have to supply phone numbers and email addresses as well, assuming the employer has those.

This would enable union organizers to bombard employees with electronic “vote yes” messages right away.  If an incident or policy change occurred at your organization that upset many employees, possibly sparking receptivity to union membership, little time would have elapsed to allow tempers to cool or for you to show employees why the unpopular action was necessary.

What’s New?

Here are some additional key components of the new rules:

  • Getting the word out: When the petitioner (presumably the union) files its request for an election to the NLRB, it will need to send a copy to you at the same time, to provide “the earliest possible notice of the filing.”
  • Informing employees: You are required to post, within two days of being put on notice yourself, a “Notice of Petition for Election” describing the filing and enumerating your employees’ rights.
  • Accelerating dispute resolution: You will have to enumerate any objections you have to the petition, generally the day before the pre-election hearing begins.  The union also has to move fast, responding to issues that the “non-petitioning parties” (that is, typically the employer) has raised at the opening of the hearing.
  • Objections must be narrow: “Litigation inconsistent with the positions taken by the parties will generally not be allowed,” warns the NLRB.  In other words, no legal diversionary tactics.  The focus of the hearing will be limited to “issues necessary to determine whether an election should be conducted.”  And if you challenge the eligibility of a handful of employees to join the union, the NLRB may let them vote anyway and not hold up the election.  Afterwards, it will address the eligibility dispute — but only if those votes could have determined the election’s outcome.
  • Keep your briefs brief: In fact, you might not even be allowed to file a brief for the pre-election hearing; NLRB’s regional director will decide if that’s necessary.  All parties will be able to make their case orally during the hearing, however.
  • Review process: You (and the union or employees) can ask the regional NLRB chief to reconsider rulings made before and during the election, but only through a single post-election request.  And if you don’t get the opinion you had hoped for, the only way the regional director’s ruling can be overturned is by the members of the NLRB itself.
  • Scheduling of hearings: Pre-election hearings generally will be held eight days after you receive the hearing notice.  More time might be allowed “in cases presenting unusually complex issues.”  Also, if there is to be a post-election hearing, it generally needs to start two weeks after any objections to the election process are filed.

What to Do Now

Under the new rules, things will move very fast if some employees want union representation.  That means you might consider providing some basic education to supervisors about indications that a movement to unionize is developing, to maximize the time  you have available to respond.

Also, supervisors should be aware of general labor law requirements and restrictions aimed at keeping employers from blocking employees from seeking unionization.

Finally, if you collect employee personal email addresses and telephone numbers, you might want to revisit that policy.  As noted earlier, if you have them, under the new rules you will be obligated to turn over to union organizers, should a unionization drive take root.

Union Election Process: the Basics

Here’s a quick refresher on the basic steps toward unionization:

  1. Employees, a labor union, or even, in theory, an employer files a “representation petition” with the NLRB to allow a union representation election to be held.
  2. The NLRB will a) review the petition(s) to determine if an election should be conducted and, unless it finds a reason not to, b) it will “direct” an election.
  3. In the typical instance in which the employer is not the petitioner, the NLRB notifies you that a petition has been filed.
  4. All parties (“in most instances,” according to the NLRB) agree to the voting unit and other issues.  When there is disagreement, an NLRB regional office will hold a pre-election hearing to try to resolve disputes.

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