With the Recent Passage of the NLRB’s “Ambush Election Rules,” Employers Must Be Pro-Active in Their Union-Free Message

On December 12, 2014, the National Labor Relations Board took the long-anticipated step of finalizing its new “ambush election” rules, which will make it easier for unions to organize employers. The driving force behind the new rules is clear: unionization in the private sector is, and has been, steadily declining. Today, only 6.7% of America’s private-sector workforce is unionized, down from rates in excess of 20% in the 1980’s.  Looking to turn the tide, organized labor has spent billions in lobbying efforts in recent years, seeking labor-friendly rule-making and legislation.  The most recent attempt at pro-union legislation – 2009’s so-called “Employee Free Choice Act” – never passed Congress.

Now the NLRB is doing for unions what Congress would not: speeding up the union representation election process and greatly restricting employers’ ability to communicate a union-free message to its employees prior to their casting a ballot.  The new rules also eliminate employers’ existing right to challenge voters’ eligibility before the election, and require employers to electronically disclose employees’ personal information to the union.

Expedited Representation Elections

Under long existing rules, union elections must take place within 42 days of the filing of a representation election petition.  Recently, the median time frame has been 38 days.  The new rules – which go into effect on April 14, 2015 – shorten this time-period dramatically, requiring most elections to be held within 10 to 21 days of the petition filing.  This will give employers far less time to conduct an effective union avoidance campaign and communicate critical information to its employees.

Unions do not do their recruiting in plain view of the employer – and with good reason. As a result, the first time most employers learn that a union is organizing its workforce is when they receive the election petition.  By then, union organizers have likely been making their “sales pitch” for months, and have the support of a substantial majority of the workforce.  Most unions will not file a petition until they obtain signed authorization cards from at least 70% of the employees in the unit selected by the union for representation.

For years, the 38-day window between petition and election has been critical in allowing employers a fair opportunity to run an effective union avoidance campaign. In issuing its new rules, the NLRB has nearly shut this window and will effectively enable unions to spring a representation election “ambush” on non-union employers in the private sector.

Voter Eligibility Hearings Deferred Until After Election

Currently, hearings to determine voter eligibility are generally conducted seven to fourteen days from the filing of the election petition. The new rules defer most voter eligibility disputes until after the election. The impact of this change can be significant.  For example, supervisors are ineligible to vote but can be influential in persuading subordinates whether to support a union or not.  Determining which employees are supervisors is critical for employers in developing a winning union avoidance strategy. Leaving this issue unresolved until after the election impairs the employer’s ability to run an effective campaign and can ultimately affect the outcome of the election.

Release of Employee Personal Information

The new rules also require employers to electronically provide employees’ personal information such as phone numbers, email addresses, home addresses and shift times and locations so unions seeking to organize can communicate with them.

Strategy for the Employer to Combat Ambush Election Rules

Make no mistake – unions have eagerly awaited the new rules, and will jump at the opportunity to take advantage of them beginning April 14. An employer cannot effectively run a purely reactive union-free campaign in this new climate.  Instead, employers seeking to remain union-free should be proactive by developing and implementing a union avoidance strategy far in advance of receiving an election petition.  Furthermore, as time will be of the essence under the new rules, this strategy should include a plan for immediate response in the event a representation petition is ever received.

If you would like more information on this topic please contact Chris Lalak at clalak@beneschlaw.com or 216.363.4557.

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