Employers will soon need to act quickly if they want to educate employees who are thinking of unionization. That’s because the National Labor Relations Board’s (“NLRB”) December 2014 issuance of the “Representation Case Procedures Rule” (the “Rule”), which is scheduled to go into effect on April 14, 2015, will accelerate many aspects of the unionization process and require employers to give fledgling unionization efforts more information and sooner than ever before. In fact, what was once a 50-60 day union election process will be accelerated to as little as 11 days under the Rule. Additionally, under the new Rule, employers have just 7 days to hire legal counsel, get them up to speed, and prepare for a pre-election hearing before an NLRB Regional Officer. These changes in the timeline of a process, which has usually taken 2 months to one year but will take about 2 weeks under the new Rule,has led employers, members of Congress and Senators, and lawyers across the country to dub the Rule the “Quickie” or “Ambush” election rule.
Employers should be aware of major changes the Rule introduces:
- 1. Election Petitions may now be filed electronically.
- 2. Employers must post and distribute official NLRB Election Notice forms, describing the filing and explaining employees’ rights, within 2 business days after they receive notice that an Election Petition has been filed. Employers must also post the NLRB’s Initial Notice of the filing of a petition, which was not a requirement under the current rules.
- 3. Employers must distribute Election Notices electronically, in addition to posting and distributing paper Election Notices, if it is customary within the workplace to communicate with employees electronically.
- 4. Employers must provide a final list of voters to the union and the Regional Director within 2 business days after an election petition has been approved. This list must be transmitted electronically, must include all of the information in the prospective voters list, and must include e-mail addresses and cell phone numbers of voters if the employer “has such contact information in its possession.” Today, employers only need to provide employees’ full names, home addresses, and fax number (though only employees with Mohawks, car phones, and Walkmans are likely to have home fax machines).
- 5. If the parties do not stipulate to an election, a pre-election hearing will be held 8 days after the issuance of a notice of hearing. Under the current rules, such a hearing may not take place for twice as long (or longer) as under the “Ambush” Rule.
- 6. Employers must disclose a list of prospective voters—including the prospective voter’s name, job classification, shifts and work locations—to the union and the Regional Director of the NLRB at least 1 business day before a pre-election hearing.
- 7. The scope of issues that may be heard at a pre-election hearing have been narrowed to only those that are necessary to determine whether an election should be held. Accordingly, arguments on issues deemed unnecessary, such as eligibility of certain workers or groups within the workforce, are postponed until after the election
- 8. Employers must file a Statement of Position, which was not a requirement under the current rules, at least 1 business day before a pre-election hearing. Any issues not identified in the Statement of Position may be waived and the employer cannot later take a position inconsistent to those expressed in its Statement of Position.
- 9. No written briefing is allowed after a pre-election hearing absent the express permission of the Regional Director. Under the current rules, however, employers may submit a post hearing brief within 7 days.
- 10. The automatic stay is out (like Mohawks, car phones, Walkmans, and home fax machines). The NLRB will not stay an election while a party seeks review of a Regional Director’s holding on representational issues.
All is not lost yet, as there are some challenges to the Rule in the form of a pair of lawsuits in federal district courts—U.S. Chamber of Commerce, et al. v. NLRB, No. 1:15-cv-9 & Associated Builders and Contractors of Texas, Inc., et al. v. NLRB, No. 1:15-cv-00026—and a joint resolution of Congress that could halt implementation of the Rule under the Congressional Review Act, which allows the House and Senate to stop a federal agency from implementing a rule or regulation without congressional authorization. No date has been set for a decision in either case. The Senate passed its own version of the resolution by a 53 to 46 vote (the House has yet to vote), but all indications are that President Obama will veto any resolution purporting to stop the implementation of the Rule (and the 2/3rds majority needed to override the veto is unlikely without Frank Underwood whipping votes). Employers should, therefore, do their thinking now so they can move quickly later.
Although not exhaustive, here are a few ideas that can help you prepare your management staff to handle an ambush under the new Rule and generally be a step ahead when it comes labor issues in the workforce:
- 1. Do everything you can to make sure your employees are happy and feel that they have a system in which they can voice their concerns without fear of retaliation. Employees who are treated fairly, managed properly by competent individuals, and given a means to address any concerns that might arise in the workplace are generally happy employees. Happy employees are less likely to consider unionization.
- 2. Learn what signs to look for in anticipating a union campaign and educate your management team about how to spot the signs and communicate them to the appropriate people.
- 3. If you don’t already know, learn what you can and can’t do with regard to a unionization campaign.
- 4. Consider having an attorney review your employee handbook and/or policy manual. This is never a bad idea in light of the NLRB’s recent activism on a number of issues. If the last time you reviewed your handbook was in 2012, it’s likely already outdated.
- 5. Consider creating a rapid response team of core management and in house counsel (if any) that will be responsible for your company’s quick assessment and response to unionization efforts.
- 6. If you haven’t already, consider preparing some stock materials to be used during a union campaign. Having easy to adapt, ready to go information could be key to an employer’s efforts to quickly educating employees on why they don’t need to unionize. On the other hand, being unprepared could cost employers valuable time.
- 7. Reconsider what information you want to keep in your employee files. In this always on world, it’s probably impossible not to have employee’s personal cellphone numbers on file, but the necessity of keeping employees’ e-mail addresses in their personnel files should be weighed against the very real danger of the barrage of “VOTE YES NOW” e-mails your employees might receive.
The Quickie Election Rule will force employers to move faster than ever before, but those who are thorough in their review of their policies and preparedness now will save time (and money) later.