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NLRB’s Rule Expediting Union Elections Becomes Effective

Labor & Employment Law Alert Fred Gants, David B. Kern

As we noted in our December 2011 update, "NLRB Issues Rules Expediting Union Elections and Again Postponing Notices," the National Labor Relations Board ("the Board" or "NLRB") issued a final rule in December that will dramatically change union representation election procedures and timelines - to the disadvantage of employers. The rule became effective April 30, 2012. This alert describes the key changes and outlines steps employers can take now to reduce their risk of unionization.

Employers should be aware of the following significant changes in election procedures going forward:

  • Once a union files a petition for a union representation election, the Board's Regional Office will schedule a "pre-election hearing" to occur no later than five working days after the petition is filed.
  • In order to speed up the election process, the pre-election hearing will focus only on larger issues relating to the appropriateness of the voting group (known as "the bargaining unit"). Questions regarding an individual's eligibility to vote (e.g., whether an employee is or is not a supervisor) will not be addressed at such hearing, unless the individual eligibility questions concern more than 10 percent of the proposed bargaining unit.
  • Unions will be entitled to take advantage of the recent Board decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) to seek elections in bargaining units based on smaller groups of employees, such as employees only working in a particular classification or function.
  • An employer seeking to expand a smaller bargaining unit at a pre-election hearing to include other groups of employees (assuming the expansion involves 10 percent or more of the union's proposed bargaining unit) must show that there is an "overwhelming" community of interest among the unit the union seeks to represent and the group(s) of employees the employer wishes to add to the proposed bargaining unit.
  • Employers will rarely have an opportunity to appeal pre-election rulings directly to the Board, and in most cases will not be allowed to file briefs after a pre-election hearing in order to support their arguments regarding bargaining unit issues. Instead, they will be limited to oral argument at the close of the hearing.
  • The prior Board rule that an election should not be scheduled sooner than 25 days after a decision is issued following a pre-election hearing has been eliminated entirely.
  • The NLRB will develop new forms making it easier for unions to waive the right to have a list of employee names and addresses (a so-called "Excelsior list") for at least 10 days prior to the election.

Taken together, all of these developments mean much quicker union representation elections among smaller, more cohesive, groups of employees. In fact, the only firm timeframe left in effect will be the rule that a pre-election hearing cannot occur sooner than five working days after the election petition has been filed. Once that occurs, the process will proceed rapidly. Employers can expect decisions from the pre-election hearing within a day or two because there will be few opportunities for briefing or appeals to the Board, and unions may waive their right to have an Excelsior list for 10 days prior to the election. Employers could, therefore, see union elections as soon as 14 days after a petition has been filed. Under prior Board procedures, the ability to file briefs and present issues to the Board itself meant that most elections were voluntarily scheduled about 42 days after the petition was filed. That timeframe will be a thing of the past.

As has been the case with other recent NLRB rulemaking, a challenge to the new election rules is currently pending is the United States District Court for the District of Columbia. A ruling is anticipated by mid-May. The judge has denied a request to stay the implementation of the new procedures; therefore, they are currently in effect.

In light of these developments, employers must act now to anticipate elections and be prepared to communicate their position in the event they face a union election petition. At a minimum, these steps should include the following:

  • Make an in-depth analysis of the potential risks for organizing.
  • Determine the type of campaign you will run if you receive a petition and who will be your "team" charged with running the campaign, including each person's role and responsibilities.
  • Train supervisors and managers on the "do's and don'ts" in order to avoid committing unfair labor practices in connection with an election petition.
  • Train supervisors and managers to recognize the warning signs signaling potential union organizing activities.
  • Proactively communicate your position that a union is unnecessary in order for employees to receive fair treatment and competitive wages and benefits (in other words, promulgate a "union-free philosophy"). Do not wait until you face a potential organizing drive to make your position clear.
  • Ensure you have appropriately identified those in the organization who are statutory supervisors by revising job descriptions and clarifying responsibilities; there will be little opportunity to determine supervisory status at a pre-election hearing.
  • Consider whether it would be appropriate to collapse job classifications to form larger units and a greater community of interest.

Quarles & Brady LLP's National Labor Relations Act Team has extensive experience in training supervisors and otherwise assisting employers in maintaining union-free status. If you have needs in this area, or if you have any questions about the new Board election rules, please contact David B. Kern at (414) 277-5653 / david.kern@quarles.com, Fred Gants at (608) 283-2618 / fred.gants@quarles.com or your Quarles & Brady LLP attorney.