Just over a month ago, the NLRB’s new “quickie election rules,” a/k/a “ambush election rules,” went into effect. After only a month, the impact of the new rules already is being felt.
First, on the legal front, the challenges to the new rules are not faring well. Two cases have been filed, one in Texas and the other in Washington, D.C. The Texas court has already thrown out the challenge as being without merit. The D.C. case is still pending, but the court has denied a preliminary injunction, which is an indicator of the court’s view as to the strength, or lack thereof, of the challenge. More challenges may surface, but absent a victory somewhere, it appears that the rules are here to stay, at least for the foreseeable future. The Congressional effort to block the rules via legislation also failed.
Second, the anticipated increase in union organizing activity already is evident. Based on a recent report from the NLRB, the number of election of petitions filed with the NLRB in the month after the new rules became effective increased by 32 percent over the month prior to the new rules becoming effective, and by 17 percent when compared to the same period one year ago. Unions are obviously heightening their efforts to organize as a result of the new rules.
Part of the reason for this increase is that, under the new rules, the time from the petition to the election is designed to be shorter than before. Under the old rules, the median time from filing to election was 38 days. Under the new rules, that time has dropped to 23 days—40 percent shorter than before. The typical drop, though, has been greater since that figure includes the few cases that went to hearing (1.5 percent of filings vs. closer to 20 percent under the old rules). Most elections have been set to be held in fewer than 23 days, that is, much closer to the 14 day goal under the new rules. The new rules are designed for elections to be held first, and for fights over the merits of the petitions to occur later. This new structure is preferred by unions and serves to shorten greatly the time employers have to educate their employees as to the pitfalls for union representation, despite the fact that the unions may have been campaigning within the workplace for months.
Tips For Employers
The rules of the game have changed, and so employers must consider making changes to their playbooks. In the course of doing so, employers should:
- Examine their workforce and determine their most vulnerable spots, particularly in light of the new “micro-unit” concept now in place at the NLRB;
- Examine, under the new rules, what the appropriate bargaining units are, whether there are ways to make micro-units more difficult to establish, which employees share a “community of interest,” and who should be regarded (or may be regarded) as supervisors;
- Closely scrutinize policy manuals, particularly those which the NLRB or unions may claim indirectly chill legal union organizing activity, including solicitation policies, work rules, social media and e-mail policies, and confidentiality policies;
- Review workplace issues such as wages, benefits and schedules, and proactively address them to that employees will be less likely to value a union’s intervention; and
- Train supervisors—before a petition is filed—as to how to legally and effectively address union organizing activities.
In a sense, now more than ever, it is important to plan ahead. Contrary to the standard operating procedures of the past, waiting to develop and implement a plan of action upon the filing of a petition will be too late. Employers must weigh these issues now so that they are neither surprised nor unprepared if a union surfaces in the workplace. Of course, navigating these issues entail complex and still developing legal issues. Consequently, counsel should be involved in developing the strategy to be deployed.