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NLRB Finalizes Quickie Election Rules

on Friday, 12 December 2014 in Labor & Employment Law Update: Sarah M. Huyck, Editor

Earlier today, the National Labor Relations Board officially announced its “final rule” amending the current union election procedures. The new procedures will be published in the Federal Register on December 15, and will take effect roughly three months from now, on April 14, 2015.

According to the Board, the old election procedures are being changed to “modernize and streamline” the process for resolving representation disputes. Contrast that statement with the comments of former Board Member Brian Hayes, who at the time the new rules were first proposed several years ago, immediately and very publicly announced that the new rules were an obvious and politically motivated attempt to help organized labor.

The net result of the new rules are dramatic restrictions on employer rights during organizing campaigns that simultaneously enhance the likelihood of a union win. For example, the current rules typically result in elections being conducted roughly six weeks after a union files a petition with the Board. The new rules are projected to cut that time in half.

Why is that significant? Historical election data unequivocally indicates that the faster the time period between the filing of a representation petition and the actual secret ballot vote, the more likely it is that unions win the election. This is not surprising. Employers who have more time to discuss with employees the potential disadvantages of union representation are far more likely to persuade employees to remain union-free.

Another practical impact of the new rules is the expected impairment of an employer’s ability to resolve questions of supervisory status during the critical pre-election period. Supervisors are not eligible for union representation, and cannot vote in elections, but they are often primary employer spokespersons during organizing campaigns. The ability to clarify supervisory status, as that term is defined by the National Labor Relations Act, helps shape an employer’s campaign strategies.

For example, consider working foremen. They are often quasi-supervisors who may or may not satisfy the NLRB’s definition of supervisory status. If they are deemed supervisors, they can be counted on by employers to help support their union-free strategies. However, they may not legally attend union meetings, and their speech is constrained by the National Labor Relations Act. Conversely, if foreman are not statutory supervisors, they are free to attend union meetings and have almost no restrictions on their speech or the union-related questions they may ask of co-workers.

Without clarity on whether a particular group or classification of employees are statutory supervisors, employers will be uncertain as to who they can count on to carry the employers’ message to voting employees. That uncertainty will undermine communication plans, and likely increase unfair labor practice charges based on conduct of employees who are in the gray area.

The new rules also expand the types of confidential employee information that employers must disclose to unions during organizing drives. Under the old rules, employers were required to disclose only employee names and home addresses. The new rules require disclosure of employee telephone numbers, and email addresses (if available to the employer).

Absent some type of injunctive relief through litigation, employers must adapt to the new rules on or before April 15, 2014. Those interested in proactive measures should focus their immediate efforts in two primary areas: (1) supervisory communication, and (2) policies and other readily available written communication.

In the communication area, supervisors and managers should be briefed on the legal restrictions that apply during organizing drives. More importantly, they need to understand how organizing drives work, and how to recognize early warning signs.

In the area of policies and procedures, employers should shore up the following items:

  • Solicitation, distribution and posting policies;
  • No loitering policies;
  • Job posting policies;
  • Grievance procedures;
  • Lay-off and recall procedures; and
  • Progressive discipline standards.

Finally, employers should develop a “rapid response plan” emphasizing the following potential time-sensitive needs in the event of unexpected organizing activity:

  • Defining who will likely be deemed a supervisor under the Board’s statutory definition;
  • Clarifying restrictions on access to private property;
  • Preparing management staff educational materials addressing the legal dos and don’ts during organizing drives;
  • Preparing employee educational materials explaining the company’s position on union representation, and the practical significance of signing an authorization card; and
  • Determining who among the leadership team will be empowered to make time sensitive decisions, and gather the necessary informational and legal support, to respond to a very quick election.

Mark McQueen

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500