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With New NLRB "Quickie Election Rules" Union Organizing Much Easier At Your Company
Regardless of whether you call them “quickie election rules,” “ambush election rules,” or simply representation rule changes, it is vital for all employers to understand the National Labor Relations Board’s highly controversial directives that went into effect Monday, April 30, 2012.
The NLRB claims the rule changes, approved December 22, 2011, were designed to reduce unnecessary litigation and allow the Board to better fulfill its responsibilities. The reality for employers, however, is that these radical changes will result in much quicker elections, an elimination of their rights to legitimately challenge the appropriateness of bargaining unit classifications, and worst of all, severely limit their ability to communicate with employees prior to a vote.
According to NLRB Acting General Counsel Lafe Solomon, in a recent memorandum explaining how the new procedures will be implemented, the goal of the new rule is to speed up the processing of election petitions, thus eliminating any substantial delays between the date a petition is filed and the date an election takes place. Note, prior to April 30th, the NLRB target for holding an election was 42 days or less from the date a petition was filed. While the General Counsel's memorandum does not officially change this 42-day time target, the streamlined procedures make it possible for an election to be scheduled within 18 days or less after a petition is filed.
The greatest impact of the new procedures appears to be on petitions seeking to represent multiple employee classifications, as well as petitions that raise issues regarding a potential voter's supervisory status or other statutory exclusions. The resolution of such eligibility issues will now be delayed until after the election. The new procedures also limit some evidence parties can introduce at hearings. This sounds a loud cautionary bell for employers that are not prepared to move quickly in response to a filed petition. They may not be able to successfully defend their legal rights or retain much control over the pre-election process. More importantly, employers who have not taken proactive measures may find it extremely difficult to win an expedited election at their company.
Adding fuel to an already smoldering fire, the Board’s Specialty Healthcare decision (Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)), reversed 20 years of precedent, now making it far easier for unions to organize smaller groups of workers, often referred to as “micro” units. Often a key factor in the success of an organizing campaign is the size of the bargaining unit. Traditionally, unions are more successful when organizing a smaller bargaining unit and less successful with larger units. Under the newly announced “traditional community of interest” standard, the appropriateness of many smaller bargaining units will be harder for employers to challenge. The Board summarized the new standard as follows:
[when a union] petition[s] for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.
The synergistic relationship between the new procedures and the Specialty Healthcare decision point to much greater success for the unions. First, with the Board’s adoption of the Specialty Healthcare analytical framework for determining the appropriateness of a bargaining unit, it will reject an employer’s attempt to add other job classifications to the unit except where the employer can show “an overwhelming community of interest” between the smaller unit employees and those the employer attempts to add.
Secondly, under the Acting General Counsel's new guidelines, the appropriateness of smaller units is an issue that needs to be decided in a pre-election hearing. However, this type of challenge usually requires a fact-intensive analysis that would necessitate an extensive presentation and many witnesses. Under the Board’s new procedures, it is likely that a hearing officer will prohibit the presentation of comprehensive data and the testimony critical to an employer’s ability to meet its newly established burden of proof.
As mentioned earlier, it is vital for employers to be proactive where the NLRB and organized labor is concerned. Employers can best protect against organizing activity by
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developing and maintaining a strong and mutually respectful relationship between management and employees;
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making it clear that employee input and suggestions are welcome and that management prefers to deal directly with employees;
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creating a plan of action to be implemented immediately if an election petition is filed with the NLRB; and
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remaining current on your rights and responsibilities are under the National Labor Relations Act and the Board’s rules.
Unless you take proactive steps now, you may soon find yourself wondering how organized labor just won an election at your company.
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