Executive Summary: On December 12, 2014, the National Labor Relations Board (the "Board") announced that it has adopted the final rule amending its procedures for union representation elections. The new rule's primary purpose is to permit union representation elections to occur as quickly as possible. The final rule implements changes to the Board's election procedures that are substantially identical to changes proposed by the Board in 2011. Those changes were struck down by a federal court on technical grounds because the Board did not have a quorum when the rules were issued.
This most recent version of the election rule was issued on a 3-2 vote by a full quorum of Board members. Thus, it does not suffer from the same procedural infirmities as the 2011 rule. The final rule will be published in the Federal Register on December 15, 2014 and is scheduled to take effect on April 14, 2015. The new election procedures, when ultimately effective, will have the following consequences:
- The rule shortens the time period between the filing of a petition for an election and the holding of the election. Currently, the standard time period is 42 days. The new "quickie election" procedures will allow an election in under 20 days.
- The rule substantially limits the opportunity for a full pre-election evidentiary hearing of contested issues such as the appropriate bargaining unit, supervisor determinations and individual voter eligibility.
- The rule eliminates the pre-election request for review. Employers will have to seek review of all Regional Director election rulings through a single, post-election request.
- The rule requires that additional contact information of unit employees, including personal email addresses and cell phone numbers, be provided to the union.
Practical Effect of the Board's Rule Changes
- Once an employer receives the election petition, it will have a very short time period to assess appropriate bargaining unit issues and prepare for a representation hearing;
- If an employer does not become aware of a union organizing campaign until after it receives the petition, it will have less time to make an effective case against unionization;
- It will be easier for unions to win NLRB representation elections; and
- It will be more difficult to overturn the results of an election in favor of a union
Employers' Bottom Line
As mentioned, the Board's final rule is due to take effect on April 14, 2015. In the interim, employers who wish to remain non-union should take the following action:
- Quick discovery of employee discontent and covert union organizing is now imperative. Review your union avoidance training for supervisors to ensure they are receiving periodic instruction on the signs of union organizing and how to respond if they see union activity.
- Effective communication skills must now be an essential qualification for every manager. Assess your leadership team and work with individual members of management to improve their communication skills.
- Revise personnel policies to allow for legal workplace restrictions on union organizing. There are numerous ways to slow down potential organizing by employees and outside union agents. Consult with employment counsel to determine which policies are legal and effective.
- Communicate your position on unions to employees with various techniques and media. Given the new "quickie election" rules, employers must become more aggressive in communicating their position that employees are better off in a non-union environment. Use new employee orientation, employee handbooks and "Don't Sign the Card" meetings.
- Create a workplace that fosters employee participation in the operation of the company. Utilize employee committees to address safety or greater efficiency in operations. Schedule regular "state of the company" meetings to communicate with employees.
- Survey wages and benefits provided by other employers in your locality and industry. Company wages and benefits should not be so far below the norm so as to provide organizing issues for union adherents.
- Ensure that your employees are treated with respect, dignity and fairness. Audit your employee relations program to ensure that supervisors are treating employees fairly. There must be uniform discipline and opportunities for advancement, without discrimination.
- Monitor the activity of unions that are specific to your industry and which might conceivably approach your employees. Appoint a Human Resources associate to review local union websites and organizing activity in the community.