Union Elections: 5 Employer Takeaways from the NLRB’s New Rules

The National Labor Relations Board’s new rules for union elections (effective on April 30, 2012) have generated considerable criticism because they significantly shorten the amount of time employers have to respond to a petition for representation.

The regulations have been challenged in court, with a decision expected by May 15. Until then, five takeaways for employers:

1. The new regulations dramatically speed up the union election process:

“Eventually time frames are likely to be cut roughly in half once the Board has developed some experience and expertise in processing representational petitions under the new rules. For example, the current practice is to hold NLRB conducted elections within approximately 42 days (6 weeks) from the filing of the petition to the actual date of the election. Once the Board and the practitioners before it become more familiar with the new rules, union-free employers can reasonably expect that the 40 day approximate time frame will be incrementally shortened like an accordion folding in half.” (NLRB General Counsel Releases Guidance on Ambush Election Rules by Ford & Harrison LLP)

2. The NLRB has given a big boost to unions:

“Employers know that the longer the election process takes, the more opportunities they have to educate employees and win the election. A cardinal rule in union campaigns is that the passage of time is always to the employer’s benefit… The NLRB knows this as well and with the implementation of these new rules is adjusting the playing field in a way that favors unions… [and] the new expedited process for petitions certainly increases the odds of a union winning an election.” (Pick Up the Pace: New NLRB Regulations Force Employers to Respond More Quickly to Election Petitions by Littler)

3. Labor unions are likely to become more aggressive:

“… it is fair to assume that labor unions will attempt to exploit the inherent advantages associated with these changes by stepping up the extent of their organizing activity. When combined with other troubling decisions allowing unions to carve out sympathetic ‘micro-units’ of smaller employee groupings, these new rules will likely result in a proliferation of representation petitions, and impose new challenges on multiple fronts.” (NLRB Quickie Election Rule Now In Effect by Fisher & Phillips LLP)

4. Employers must start preparing now:

“If you wait until you receive a petition calling for a union election in the mail to implement any union avoidance or organizing efforts recognition training, you will have handcuffed yourself in remedying the often easily correctible irritants that may cause your employees to turn to a union in the first place. You also will be playing catch-up in trying to derail the momentum the union has built up while you were sleeping.” (Today is the Day: NLRB Quickie Election Rules Go Into Effect by Miller & Martin PLLC)

5. The rules consolidate power in the hands of Regional Directors:

“If the employer decides it does not agree with the unit sought by the union, then the new regulations empower the Regional Director to curtail all aspects of bargaining unit litigation, the only point of which is to shorten the timeframe… [T]he employer will have to convince the Regional Director that its proof is worthy of a hearing but the discretion remains with the Regional Director… The regulations give the Regional Director power to determine whether he or she will consider written legal arguments related to the hearing (if he or she grants a hearing).” (NLRB Ambush Election Regulations Set To Go Into Effect – April 30 by Proskauer – Labor Relations)

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