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On April 30, 2012, the National Labor Relations Board (NLRB) implemented new rules that will speed up the union election process from petition to election and reduce an employer's opportunity to raise challenges to the process. This should invigorate unions in their organizing agenda.  Pro-business groups have given these rules the apt name, "Ambush Elections," and view the changes as an Obama administration payoff for the support of Big Labor. There is no question that the changes will tilt the playing field in the unions' favor and make it more difficult for employers to win elections and remain union-free.
The revised NLRB rules do not specify how soon an election will be held. However, the Rule states the following:
  • Notice of Hearing will go out on the same day as the petition (scheduled within 7 days or 5 working days).
  • Postponement will seldom be granted (14 days will be maximum if extraordinary circumstances can be proven) 
  • Issues of eligibility will not be litigated (unless 10% of group affects eligibility).
 
The NLRB does not give a date certain for the scheduling of the election but, as discussed below, it appears that the current schedule of an election within 42 days from filing of a petition will become somewhere within 15 to 25 days when this new procedure is implemented and better understood.
 
Why should this matter to you? These changes will dramatically reduce the amount of time you will have to respond to a union's effort to organize your employees. Organizing campaigns are begun in secret, and the employees hear only one side of the story until the organizing campaign "goes public." Unfortunately, for many employers, their first notice of an organizing campaign is notice that a petition for an election has been filed with the NLRB. Under these changes, the time between the petition filing and the election - your time to counter the union's sales pitch - will be reduced from 6 weeks to as few as 15 days.
 
Under the pre-April 30, 2012 rules that existed for decades, if a union were to file a petition seeking to represent your employees, the election would likely be held approximately 42 days - or 6 weeks - after the filing of the petition. During those 6 weeks, you would have the opportunity to share information and opinions with your employees so they would have both sides of the story before casting their vote for or against the union. You would also have the opportunity to raise important issues at a pre-election hearing and in briefs, such as whether certain employees are supervisors not eligible to vote, whether certain groups of employees must be excluded from or included in the bargaining unit, or whether there should even be an election at all. Once a decision has been issued on these important pre-election matters, the election would be scheduled within at least 25 days.
 
Unions have not been successful enough in organizing employees, so they are looking for an unfair advantage. As you will recall, the unions and President Obama sought, without success, the right to the “card check” law. This is an alternative. The Obama NLRB intends to deliver in the form of changes that eliminate pre-election hearings in most cases, defer voter eligibility questions until after the employees already have voted, eliminate briefs and briefing periods in those rare cases in which pre-election hearings take place, postpone appeals and objections for a single post-election appeal, eliminate the 25-day waiting period between a pre-election decision and the election, and eliminate pre-election appeals except in "extraordinary circumstances." The new rules will even eliminate post-election appeals in many cases by making them discretionary and allowing the NLRB to summarily reject appeals that, in the NLRB's view, "do not present a serious issue for review."
 
Can you answer "yes" to these six questions?

 

  1. Do your employees today know why your organization is non-union and do your employees understand why a union will not help your organization?
  2. Is your organization prepared to meet the challenge of the union organizer on short notice and with a limited set of tools at your disposal?
  3. Have you assessed your organization's vulnerability to an organizing effort?
  4. Are your supervisors and managers trained to observe and report early signs of union organizing to maximize your time for response? Do you know the issues of not only why unions organize but also who is eligible and who your excludable supervisors are and other issues?
  5. Do you have a plan of action in place to quickly, accurately and lawfully communicate with employees in the event you are targeted for organizing?
  6. Have you pre-educated your workforce regarding basic information about unionization and your organization's position regarding unions so that you aren't starting from square one when and if you receive notice of a campaign?
 
If there are gaps in your preparedness, now is the time to implement preventive strategies and tactics to neutralize the unfair advantage that Big Labor has purchased from Washington. In order to be successful under this new regime, employers must be ready to hit the ground running before a petition is filed.
 
If you have any questions about how these new rules will affect your workplace, or any other employment law question, please contact me at 414-988-8403 or via e-mail at: tpk@kclegal.com
 
Posted 5/10/12.
 
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   
Em: mharvey@mileskimball.com

 
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