‘Quickie’ Union Election Rule Shrinks Campaign Period

By Allen Smith December 12, 2014

The National Labor Relations Board (NLRB) changed union election procedures on Dec. 12, 2014, in ways that may make the union election campaign period as short as 14 to 20 days, Michael Lotito, an attorney at Littler in San Francisco, told SHRM Online.

Right now, after a union petition for an election and before the election, an employer can buy a month, if not longer, by filing briefs about which employees are eligible to vote and which are not, according to Joel Barras, an attorney at Reed Smith in Philadelphia.

Under the “quickie election” rule, which takes effect April 14, 2015, there still will be a hearing about who is in and out of a unit, but the filing of briefs will not be allowed until after the election without special permission. So, the time frame employers have to communicate their side about unionization has effectively been shrunk.

Rapid Response Teams

Larger companies should consider having rapid response teams to be at the ready once a union petition is filed, Lotito said. Otherwise, by the time communication about the union goes through external and internal communications and government affairs, the company may find itself quickly unionized due to the new speediness of the election campaign period and internal red tape.

Other steps Lotito recommends include:

  • If a company is not already engaged in union prevention, “now’s the time to do it,” as there will be “massive increased organizing.”
  • Developing unit determination strategies and position statements so that they are ready to file to preserve company rights.
  • Taking proactive steps on the company’s union-free philosophy and the possible consequences of signing union cards.

The board has now signaled as part of its “modernization” of the election process that it may start accepting electronic signatures for union authorization cards. How that may be achieved is uncertain, but it may tie in with the board’s recent decision to permit the use of company e-mail by employees to assist in union organizing efforts.

The quickie election rule has to be viewed in the context of such developments, as the board is making “a real effort to help unions in union campaigns, and broaden the board’s influence,” Barras remarked.

The quickie election rule is “a massive change,” Lotito emphasized, recommending that employers look at budgets for training and take “preventive steps to deal with this.”

Barras noted that one reason for union organizing is the rising costs of benefits at employees’ expense, but also said the push for a union can flow from “weak supervision, and management that does not listen to or respond to workers’ complaints. Employees that think they have a voice in the workplace do not seek unions.”

Procedural Modernization

The board described its rule as modernizing representation case procedures by:

  • Providing for electronic filing and transmission of election petitions and other documents.
  • Ensuring that employers, employees and unions receive timely information they need to understand and participate in the representation case process.
  • Eliminating or reducing unnecessary litigation, duplication and delay.

Another change the rule makes is requiring that additional contact information—personal phone numbers and e-mail addresses—be included in voter lists available to unions to the extent employers have that information.

Board Chairman Mark Gaston Pearce said, “I am heartened that the board has chosen to enact amendments that will modernize the representation case process and fulfill the promise of the National Labor Relations Act. Simplifying and streamlining the process will result in improvements for all parties. With these changes, the board strives to ensure that its representation process remains a model of fairness and efficiency for all.”

Employers Object

However, employer groups swiftly and resoundingly criticized the rule.

“SHRM [the Society for Human Resource Management] is evaluating the final rule’s scope and impact on the workplace and considering all options to prevent these unnecessary and harmful changes from going forward,” said Nancy Hammer, senior government affairs policy counsel for the organization.

David French, senior vice president of government relations with the National Retail Federation, remarked that it “is considering both a legal and legislative strategy to combat the outrageous erosion of employee and employer rights at the NLRB.”

And Mark Mix, president of the National Right to Work Legal Defense Foundation, said, “The NLRB’s new ambush union organizing election rules make union-organizing campaigns even more one-sided and stifle the rights of employees who may oppose unionization in their workplace. The rules also mandate that workers’ personal information be handed over to union officials, and combined with yesterday’s NLRB ruling that employers must allow company-owned e-mail systems to be used for union organizing, the new rules open the door for cyberbullying by union organizers.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.



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