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What are the details on the new, proposed NLRB union election rules?

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in Employment Law,Human Resources

Q. We are a union shop. We’ve heard the NLRB has new rules about unions. What do they involve and what do they require us to do?

A. The National Labor Relations Board (NLRB) has indeed proposed changes to the federal rules governing union-organizing elections. They were published in the Federal Register on June 22, 2011.

The effect of the NLRB’s proposed rules is to impose additional requirements on employers in a very compressed period of time. It is estimated that the proposed rules will result in elections being held within 10 to 21 days from the time an election petition has been filed. This is a much tighter time frame than current rules dictate. Right now, the median number of days between petition and election is 38.

Under the new rules, hearings on the petition will automatically be scheduled within seven days of the filing.

The employer will be required to provide the union with a list detailing the names, work locations and job classifications of all employees in the proposed unit no later than the start of the hearing.

The employer will also be required to prepare and submit in advance of the hearing a complete statement of the issues and evidence to be addressed at the hearing. Any issues not included in the statement (other than jurisdiction) would be forever waived.

The rules would permit deferring litigation of most voter eligibility issues until after the election. The rules would also eliminate an employer’s right to review NLRB regional director determinations before the election and would consolidate all election challenges into a single post-election appeals process.

Finally, the rules would require employers to provide employees’ home phone numbers and email addresses directly to the union within two days after details of the election have been set by the regional director.

The proposed rules have several important implications for employers.

By the time a union takes the formal step of filing an election petition, it likely has been engaged in an active campaign to organize the workers for an extended period of time. The union’s organizers have probably been meeting with employees, solidifying relationships, making promises and generally spreading the union’s one-sided story of why the employees should vote to be represented by the union.

By the time the union feels comfortable enough to file the petition, its support is at its absolute highest point. It is very common for all of this activity to have occurred in secret, with the employer not even aware that organizing was taking place.

A period of 10 to 21 days may not be enough time for an employer to effectively counteract the union’s message or give employees the information they need to make informed choices about what it means to be represented by a union.

What can we do to remain union free?

Q. What options will employers have if the proposed rules are implemented?

A. The best option available to employers wishing to remain union-free is to be more systematic in assessing vulnerability to union-organizing attempts.

Make it a point to educate supervisors about union organizing. Provide management training on union avoidance, emphasizing early detection of organizing activity, responding to employee questions about unions and effective management techniques that will make employees less inclined to seek union representation.

Additionally, develop employee education and communication programs to address topics such as the effect of signing authorization cards, what it means to be represented by a union and the employer’s position on unions.

Employers shouldn’t wait until a petition is filed or there are visible signs of organizing to undertake these efforts.

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