Prepare to be Ambushed

The quickie election or “ambush” rules that drastically reduce the time between the filing of the union representation petition and the election are now final and become effective April 14, 2015.  The rules have had a rocky history; they were first introduced in 2011, subsequently were finalized, then were struck down by the D.C. Circuit Court in 2012 on a technicality, reappeared last year and were finalized on December 14, 2014.  Unfortunately for employers who have heard about these rules for years, they are now the law unless they are challenged and overturned by the courts.  At least two such challenges are currently pending.  The National Labor Relations Board released a fact sheet that describes the quickie election rules.

The new rules are 182 pages long (in the Federal Register) but they boil down to the fact that union elections will happen in half the time or less and most of the procedural rights that employers enjoyed pre-election will now happen post-election, if at all.  Under the new rules, elections may be held within as little as two weeks of the filing of a union representation petition, down from 42 days.  Overall, commentators are saying that the time will be somewhere between 10 and 21 days although the material point is that this is mere weeks, not the month and a half employers are currently afforded.

The reality is that now, when employers discover a union representation petition has been filed, it may already be practically too late to turn the tide.  Under the 42-day schedule, employers had a week to hire an attorney or a labor consultant, a week for 2(11) supervisors to undergo union-free training, and a week to become comfortable campaigning.  This is no longer the case.  If employers take those same 3 weeks to become comfortable with the process and campaigning, the election could be over!  The new reality is employers need to be campaigning now so that if a petition is filed, the issue is turning up the employer’s campaign, not starting it.

Below is a list of some of the key changes/new rules that have been finalized:

1. The union can electronically file the Union Petition, must serve a copy on the employer, must set forth details of the election in the Petition (manual or mail, dates, locations, etc.), and must submit proof of the showing of interest to the Board at the same time as it files the Petition.
2. Along with the Petition, the union (or petitioner) must serve a detailed Agency Description of Representation Case Procedures and an Agency Statement of Position form on the employer.
3. The 25-day period between the Regional Director’s issuance of a Decision and Direction of Election and the election is now eliminated.
4. Employers must post a Notice of Petition for Election with detailed information on employee rights, the voting process, and the filing of the Petition. It must be posted within two business days of service of the Petition and obtaining the Notice from the Board (which will generally accompany the Petition).  The Notice must be distributed via email if the employer uses email to communicate with employees.  (No such requirement previously existed.)
5. Employers are required to give the union employees’ personal email addresses and phone numbers. (Currently, employers need only provide employee names and addresses.)  Be aware, employees will likely be harassed by union organizers calling their cell phones and emailing their personal emails as a result of this change.
6. Employers are required to respond to the Petition and state their position generally the day before the pre-election hearing opens.
7. The pre-election hearing will be held within 8 days of service of the Board’s Notice of Hearing, unless the Regional Director feels the case is too complex. The Regional Director has discretion to adjourn the hearing for up to four days if needed.
8. The pre-election hearing is restricted to only those issues necessary to determine if the election should be held.

The bottom line is employers have dramatically less time to campaign and ensure their employees hear the truth about unions.  Therefore, it is more important than ever to provide union-free training to 2(11) supervisors so companies are not ambushed with a union petition.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

THIS ARTICLE WAS FIRST PUBLISHED ON THE LAW.COM CONTRIBUTOR NETWORK ON JANUARY 30, 2015.