New Rules Set to Accelerate Union Elections

Private sector employers who prefer to keep their operations union-free should take note: on April 14, 2015, new rules developed by the National Labor Relations Board (NLRB) aimed at expediting union elections will likely take effect. The new rules will make three major adjustments to the NLRB’s pre-existing procedures:

(1) The time from the filing of an election petition to the date of an election will be shortened from approximately six weeks to as few as ten days. This time-frame will greatly compress how long employers have to assess the key issues driving employees’ organization, to devise effective communications addressing them and to deliver those messages in a lawful way.

(2) The critical early period for assessing issues and formulating employer communications strategy will also be occupied by preparations for a pre-election hearing, which now must occur within 8-12 days of a union’s petition, and by the generation of extensive information – including email addresses and phone numbers – that pertain not only to employees in the union’s preferred unit, but to those in any alternative unit the employer deems appropriate.

(3) Third, most litigation relating to the appropriate group of employees rights to vote will now be delayed until after the election has taken place. If a group of employees who the employer contends should not be included makes up less than 20 percent of the proposed unit, the employer will have no right to challenge their inclusion until after the election has occurred.

Although both the U.S. Senate and House of Representatives recently passed bills aimed at blocking these rules, President Obama vetoed them on March 31, 2015. There are also several lawsuits challenging these rules, yet each faces significant challenges. Given all things, employers would be wise to exercise a prudent approach, expecting the rules to stay intact.

For private sector employers, the new NLRB election procedures put a premium on advance preparation. To effectively address legitimate election issues, meet the burdens of information-gathering and identify and communicate the key themes necessary to win any election – all in the very short timeframes now afforded – most employers will need to do at least some of their work beforehand.

A chart reflecting the NLRB’s comparison of old and new election procedures is available here. For more information on this subject, or guidance on related issues, contact attorney Matthew Damon (612.305.7580 or mdamon@nilanjohnson.com).

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