Employers Should be Prepared for Union Organizing Under New “Quickie” Election Rules

The National Labor Relations Board (NLRB) has recently issued its final rules regarding union representation case procedures.  These rules are commonly referred to as quickie election rules.

These quickie election rules seek to expedite the election process.  They limit an employer’s ability to respond to union campaigns, effectively ambushing an unprepared Employer.

BACKGROUND

The NLRB is the federal agency responsible for governing private sector employer-union relations.  Part of its charge includes conducting elections for labor union representatives.  Representation elections may be filed by unions, employees and/or employers.  The NLRB conducts the election and, if necessary, holds a post-election hearing to resolve any challenges.

SIGNIFICANT CHANGES

The new quickie election rules significantly alter the landscape for representation elections.  A few of the changes include:

  1. Speed of Elections.  The NLRB has made several changes to speed-up the election process.  The new rule eliminates the 25-day waiting period between the issuance of the Directive of Election and the holding of the election.  The new rule also permits the Union to waive the 10-day Excelsior list period.  Whereas traditionally uncontested elections were held within 42 days, under the new quickie election rules an election could be held in as little as 13 days.
  2. Providing Personal Information.  Employers are required to electronically file with the NLRB and serve upon the Union a list of eligible voters within two (2) business days after the issuance of the Directive of Election on the Stipulated Election Agreement.  The new rule also requires the Employer to provide available email lists, provided the Employer customarily communicates to the employees in this manner.
  3. Vote Now, Litigate Later.  The new rules eliminate the Employer’s right to obtain a determination prior to the election about whether certain employees are allowed to vote, such as “supervisors.”
  4. Inform Employees.  Under the old rules, Employers did not have to provide notice to employees that a petition had been filed.  Under the new rule, Employers must post and distribute a notice about a potential election within two business days.  Failure to properly post may overturn an election.
  5. Review of Rulings.  The new rules limit review of election rulings through a single post-election request.  Parties will only be able to seek review of all election rulings through this single post-election request.  An election will no longer be stayed until after the Regional Director issues a decision.  Furthermore, the Board will now have discretion to deny reviews of any post-election dispute as to which no party raised an issue.  As a result, Employers must ensure all issues are raised in a timely manner.

WHAT DOES THIS MEAN FOR EMPLOYERS?

The quickie election rules make it clear that Employers must be prepared to respond quickly to union organizing campaigns.  By failing to prepare, an Employer is preparing to fail.  Here are a few simple steps all Employers should consider:

  • Assess Vulnerability.  An Employer should perform a self-audit or independent audit to determine potential warning signs.  In doing so, Employers should review wage packages, work rules and whether employees are generally content.  Failure to continually self-assess, places Employers at risk.
  • Review Company Policies.  Employers’ policies have come under attack by the NLRB in recent years.  The mere maintenance (even without enforcement) of a handbook policy may be construed as violating employees’ Section 7 rights.  This fact by itself ― could be used to set aside an election victory.  Also, during the union organizing drive certain policies are front-and-center: no-solicitation, access, and union paraphernalia.  All Employer policies should regularly be reviewed for legal compliance.
  • Training.  The supervisors are the people that will be confronted with union organizing issues.  Employers should actively take steps to ensure their supervisors are trained to detect and respond to union activity.  Effective training will empower the Employer’s supervisors to quickly and legally respond to union organization issues.
  • Improve Communications.  Union organizing campaigns often focus on creating a divisive environment.  This can be achieved, in part, on inhibiting good communications between employees and management.  As a result, it is important to effectively communicate with employees, and show the availability of top-level management.  Employers should also ensure that all employees are aware of its position on unionization.  The Employer must convey its position in a legally appropriate manner.

The new quickie election rules will change the dynamic of representation elections.  Time and money spent in early preparation will save Employers exponentially in the future.

Christopher L. Hilgenfeld is a Washington and Oregon licensed attorney representing Employers in labor and employment matters.  For more information Chris may be contacted at chilgenfeld@davisgrimmpayne.com, or at (206) 447-0182.

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