On December 12, 2014 the NLRB rediscovered its need for speed and published the so-called “quickie” or “ambush” election rule for union organizing campaigns. The actual rules take effect on April 14, 2015 and leave much to the imagination (and a lot of discretion to the Regional Director), but three things are clear:
1. Employers must be prepared. When an employer receives an election petition, things will happen fast — the first hearing will normally be held within eight (8) days. Employers should maintain a running list of their employees including phone numbers, addresses, email addresses, job classifications, shifts and job titles/departments. Employers should also have defined organizational structures (i.e. org charts), department breakdowns and written job descriptions for each employee or group of employees in order to be able to make timely arguments during the expedited election process. In addition, an employer would be wise to have a framework of a potential campaign pre-planned, leaving room to customize the campaign for any specific issues.
2. Have good lawyers. Under the NLRB’s new rules, an employer is required to completely argue its case in a Statement of Position filed one business day before the first hearing. The penalty for failing to file a complete Statement of Position is waiver – in other words, any issue that an employer does not raise in its Statement of Position will not be considered in future litigation. This means that an employer’s lawyers better know their stuff and be able to file a thorough Statement of Position in a week. They also need to be able to advise the employer about their obligations (including required postings) at the risk of having to re-do an election that the employer wins.
3. Prevention and advance warning systems are critical. Employers used to be able to count on having more than 40 days to conduct a counter-campaign. This is no longer true and there is no rule about election scheduling — the NLRB’s Regional Director will schedule the election “for the earliest date practicable.” To be ready, employers should maintain up-to-date union awareness training (for example, education about the legal effects of union cards), should regularly review their solicitation and email policies to make sure that they are consistent with the NLRB’s flavor of the month and should continuously take the pulse of the workforce to determine if a union organizing campaign is underway. An ounce of prevention is truly worth a pound of cure in this context.
The new rules make the union election procedure a “vote now, understand later” fire drill. Employers no longer have the luxury of playing catch up when they receive a union election petition and need to be prepared in advance.