The National Labor Relations Board has adopted new, “streamlined” rules for union elections that create additional requirements for businesses and could dramatically shorten the time between when a union files a notice and when a vote is held.
Union elections could now be held as little as 13 days after a union files a petition. This means companies will have to scramble to meet very short deadlines, and may have little or no time to respond and make their case to their workers about why they don’t need a union.
Here’s a brief look at the changes and what they mean:
- Unions can now file petitions with the NLRB electronically and simultaneously provide notice by e-mail to the employer. (In the past, the NLRB would notify the employer, usually by mail, which took longer.)
- Within two days of being notified, the employer must post a detailed employee notice about the election. It must also e-mail employees about it (if the employer typically communicates with employees via e-mail). This is new; employers didn’t generally have to post a notice before. The short two-day time period means that many companies may miss the deadline. If you miss the deadline, you might have the union election results invalidated even if you win. A serious problem is that the e-mail notice from the union might not go directly to the person most responsible for handling the employer’s relevant responsibilities. As a result, many more employees will need to be trained regarding what to do if they receive an e-mail notice and the importance of reacting quickly.
- If an employer wants to challenge the appropriateness of the proposed bargaining unit, a hearing will be held a mere eight days after the petition is served. By the day before the hearing, the employer must provide a searchable list of prospective voters in the proposed unit, including job classifications, shifts, and work locations, along with the same information for any other workers the employer thinks should be included or excluded. Failure to do so means the employer can’t challenge whether the bargaining unit is appropriate. In the past, an employer could have seven days to file briefs after the hearing, and could put things on hold if it appealed the result of the hearing. Now, whether an employer can file briefs after the hearing is up to the hearing officer, and an appeal will not put the process on hold.
- Once an NLRB regional director announces the date and other details of the election, it can happen very quickly. In the past, there was a 25-day waiting period after the announcement, but that has been eliminated.
- Within two days after a decision is made about the date of the election, the employer must give the union all the employees’ names, addresses, personal cell phone numbers, home telephone numbers, and personal e-mail addresses, to the extent that it has them. Once a union gets this information, it can insist that the election be put off for 10 days to give it time to contact the workers, although it can also waive this 10-day waiting period. If the union waives the 10-day period, the election could be held in as little as 13 days after the petition was first served on the employer.
As a general rule, the longer a union election takes, the more likely it is that an employer will win, because the employer has more time to make its case and get out information about its side of the story.
It’s entirely possible that many businesses will be scrambling so quickly just to meet their obligations to post notices, provide information about employees and prepare for a hearing that they won’t have time to make an argument against the union. This is why some critics of the new rules say that they allow for “ambush” elections.
In any event, if there’s any likelihood of a union challenge, employers need to be prepared. In general, employers would be wise to plan ahead as to what message they want to get out about unionization and how they will communicate that message. If you wait until you receive notice of a union petition, it may be too late to formulate a winning strategy.