The National Labor Relations Board has issued a final rule making significant changes to the procedures leading up to union representation elections. To secure the right to represent a group of employees, unions must first get a showing of interest among an appropriate group of workers. That is typically done by getting employee signatures on authorization cards. With at least a 30% showing of interest, a union can file a petition with the NLRB requesting a representation election. Once the petition is filed there must be a determination of what is the appropriate group of jobs to be included in the voting. Sometimes that occurs by agreement between the company and the union. Sometimes it requires a hearing in front of an NLRB judge. Also after a petition is filed, there is typically a period of communication by the company to the voters, expressing legal reasons that the company feels that union representation is not in the best interest of the employees or the company.
The new rule takes effect April 14, 2015. Among other things, it paves the way for elections to occur much more quickly after a petition. Under the new rule the expected time to election will be approximately 14-21 days after the petition. Conceivably an election could happen in as few as 10 days. Compare that with the current average time of about 40 days between petition and election even when there is agreement on what jobs are in the voting unit. That means less time for management to communicate effectively to workers before the vote. At the time a union files a petition, it has often already obtained authorization cards from 50% or more of the workers. Obviously, being able to get to election as quickly as possible is in the union’s best interest. That has caused some to refer to the new procedures as “election by ambush.” Another significant change under the new rule is the requirement that the list of eligible voters provided to the union include employee telephone numbers and email addresses. Currently only names and home addresses must be provided. The new rule also restricts the kinds of voter eligibility challenges that can be made in a pre-election hearing, requiring that most of those challenges be raised after the election in an effort to set-aside the results.
In recent months, the NLRB has taken various steps affecting the process for union organizing and many feel the Board is determined to make the process easier for unions. For example, we have pointed out here the Board’s recent cases that support organizing smaller units of employees, which increases a union’s chance of success. More recently, we wrote here about the Board’s Purple Communications case, opening the door for employees to use company email systems for union organizing.
There may be legal challenges to the rule, but it could be difficult to sidetrack. Employers are wise for now to presume that the NLRB will continue to pave a smooth road for union organizing. It is especially important that companies re-evaluate their commitments to the things which make union organizing less likely. Those include fair and consistent treatment for all employees, well-constructed human resources policies and practices, effective communication with all employees, and a management group that is attuned to those commitments and well-trained to spot the early signs of organizing and to respond appropriately.