NLRB proceeds with ‘quickie election’ rule implementation

by Tammy Binford

As the National Labor Relations Board’s (NLRB) controversial “quickie election” rule moves a step closer to implementation, employers are being warned to be ready.

On April 6, NLRB General Counsel Richard F. Griffin Jr. issued a 36-page guidance memo that outlines how new unionization efforts will be processed from the time a union petitions to represent an employer’s workers through certification of the union as a bargaining agent.

The new rule, which the Board adopted in December 2014, shortens the time between the filing of an election petition and the election, provides for electronic filing of election petitions and other documents, and delays legal challenges until after an election has been held. Also, it requires employers to provide lists of a potential bargaining unit’s employees and their contact information as well as a statement of position identifying their stand on various issues early in the process. Issues not raised in the position statement will be waived in NLRB hearings challenging the election.

David S. Fortney, cofounder of Fortney & Scott, LLC in Washington, D.C., advises employers to prepare immediately for a response to a union election campaign “because under the new rules, if you only prepare after you receive a notice, you will not have enough time.” He says employers should:

  • Consider which employees the appropriate bargaining unit should include;
  • Prepare materials describing the company and the many positive attributes of being nonunion;
  • Examine past unsuccessful organizing attempts and “go to school” on those efforts to anticipate how renewed efforts should be addressed;
  • Make sure discipline is fair and that their conduct doesn’t spark interest in a union; and
  • Stay up to date on the NLRB’s handbook restrictions and consider making changes to ensure the Board can’t challenge their handbooks, which can become a rallying point for a union seeking to gain a foothold.

John Husband, a partner at Holland & Hart LLP in Denver, Colorado, also advises employers to take preemptive steps to avoid unionization efforts. Such steps include “using front-line supervisors to identify and monitor workplace dissatisfaction and fixing problems in ways that minimize union appeal,” according to an article he wrote on the subject with Bradford J. Williams, another attorney at Holland & Hart in Denver. “Employers may also implement grievance procedures designed with the same objective.”

The article also advises training managers and supervisors to identify developing organizing efforts. Managers and supervisors also should be trained to avoid illegal actions during unionization campaigns such as threatening, interrogating, promising benefits to, or spying on employees. Such actions could invalidate favorable election results.

Foes of the new rule say it unfairly favors unions and robs employers of the time needed to communicate with workers about the effects of union representation. The NLRB, though, says it is necessary “to streamline and modernize the representation case process and eliminate unnecessary litigation and delay.”

The new rule has a storied history. The NLRB advanced the rule in June 2011, but that action was struck down in 2012 because the Board lacked a quorum in voting to adopt it. In December 2014, the full Board voted to adopt the rule again.

In January 2015, two lawsuits challenging the rule were filed. Those suits are still pending. In March, both the Senate and the House voted to overturn the rule by using the Congressional Review Act, but President Barack Obama vetoed that resolution.

On April 17, HRHero will host a webinar on strategies for thwarting union-organizing campaigns in light of the quickie election rules. Click here for more information.