Just one day after limiting the ability of employers to restrict employee use of email systems, the NLRB today handed another victory to organized labor when it approved a new rule for the conduct of union representation elections – commonly referred to as the “quickie” or “ambush” election rule. The new rule will clearly speed up the union representation election process and restrict the ability of employers to communicate with their employees over the significance of that election.

The Board’s announcement today on the 3-2 vote called the new rules an effort “to modernize and streamline the process.” However, the two Republican Board members dissenting from the rule change called it unnecessary, violative of worker privacy and an obstacle to workers making informed choices regarding unionization. Members Philip Miscimarra and Harry Johnson wrote in dissent that "[t]he final rule has become the Mount Everest of regulations: massive in scale and unforgiving in its effect."

The rule will be published in the Federal Register on Dec. 15, and will take effect on April 14, 2015.

Among others things, the new rule:

  • Limits the subject matters to be considered in pre-election hearings, pushing to post-election hearings most objections concerning the election and the proposed unit;
  • Requires employers to submit a Position Statement on all issues raised by the proposed bargaining unit seven days after receipt of the petition, risking waiver on issues not raised then; 
  • Eliminates a previously-required 25-day period between the time an election is ordered and the election itself;
  • Requires employers to furnish union organizers with all available personal email addresses and phone numbers of workers eligible to vote in a union election; and
  • Provides for electronic filing and transmission of election petitions and other documents. 

The Board published the following chart showing the differences between the old and new rule:

Click here to view the table.

This rule makes every private, non-union company much more vulnerable to unionization. Indeed, employers currently have time prior to the secret ballot election to present the opposing viewpoint on whether unionization is a good idea, which allows employees to hear both sides of the story and make an informed decision. But, after this rule is implemented, employers will no longer be able to wait to mount a campaign prior to an election. Moreover, this rule and yesterday’s NLRB decision gives unions unprecedented access to communicate with employees via an employer’s e-mail system. As a result, employees might be pressured or intimidated into signing authorization cards when, in actuality, they would prefer not to be in a union.

Recognizing this, prudent employers will develop a pro-active plan to oppose unionization. The basic elements of this plan should include:

  • Conducting a vulnerability assessment to ensure that you have the necessary policies in place, such as non-solicitation/non-distribution policies as well as problem-solving policies, and that you consistently enforce those policies;
  • Training your supervisors regarding how to identify and respond to union organizing activity as well as how to foster positive employee relations;
  • Increasing communication with your employees to gain feedback on working conditions, wages and benefits, to explain the consequences of signing a union authorization card, and to educate them on your position about unions; and 
  • Developing a campaign “in the box” now—before union organizing begins.