New NLRB ‘Quickie Election’ Procedures

The Obama administration’s National Labor Relations Board (NLRB or board) continues to significantly alter the landscape of union elections, making it easier for unions to organize Tennessee businesses. On Dec. 22, 2011, the board[1] finalized eight amendments to its union election procedures. The amendments are designed to dramatically limit employer’s legal challenges and shorten the timeline for conducting union elections. To appreciate the significance of these changes, one must first understand the current union election process.

First, a union must obtain signed union cards from at least 30 percent of the employees in the unit being organized. Once the union has obtained the signatures, it files a petition with the NLRB. The NLRB then conducts and schedules a pre-election hearing in which the parties can raise any factual or legal issues relating to election details or the unit of employees that the union seeks to organize. The employer has the right to file a Post-Hearing Brief and appeal the Hearing Officer’s decision to the Regional Director and the NLRB. The election is generally held “no sooner than” 25 days after the NLRB directs an election. Currently, the average time from the pre-hearing order to the election is 38 days. However, with the current briefing, hearing and appellate options, the process can be prolonged for months. That can certainly be a strategic advantage to any employer surprised by a union petition.

The stated goal of the pro-labor board majority is to reduce the election schedule to as little as 10 days and no more than 20 days. The key amendments within the NLRB’s Final Rule are:

  • The pre-election hearing is expressly limited to questions of representation (essentially whether the union possesses the requisite 30 percent of cards).
  • The pre-election hearing officer has the authority to exclude all evidence separate from “questions of representation” (e.g. as whether an individual (or group of individuals) is actually a supervisor).
  • Post-hearing briefs are no longer a right and may only be filed at the discretion of the hearing officer.
  • No automatic right to appeal the pre-election hearing officer’s decision to NLRB. All challenges are now deferred to a post-election request to the board for discretionary review.
  • Elimination of the 25-day waiting period following the direction of an election. Elections will likely be held within 15-20 days.
  • NLRB review of post-election issues will not be at the discretion of the board.

The board (at this time) has decided not to advance a number of other previously proposed pro-union resolutions, e.g., notably requiring employers to provide employees’ e-mail addresses and phone numbers on the voter list and requiring the hearing to be set within seven days of service of the election notice.

The Workforce Democracy Fairness Act

Parallel to the new NLRB resolution, the House of Representatives has passed the Workforce Democracy Fairness Act (HR 3094) to counteract these new “quickie” election rules pursued by the NLRB. HR 3094 provides:

  • Fourteen days (minimum) to prepare for a pre-election hearing case.
  • No union election can be held sooner than 35 days following petition.
  • Prevents NLRB from requiring employers to provide the union with employee home addresses and emails.

However, the Senate has not acted as of the writing of this article — and, with a 52-46 Democratic majority, it is unlikely to pass the Senate. The pending judicial challenge by the U.S. Chamber of Commerce is far more likely to derail the board’s actions.

WARNING: Quickie Elections + Micro-Units = Big Challenges for Employers

Not only is the “quickie election” resolution problematic, but its combination with an August 2011 NLRB ruling allowing “micro” bargaining units magnifies the challenge for employers.[2] In Specialty Healthcare, the NLRB reversed two decades of board law, changing the standard for determining the appropriateness of a bargaining unit. The two-member board majority affirmed the union’s right to organize any small unit of employees (“micro unit”) that is “readily identifiable as a group who shares a community of interests.” Thus, now unions can petition for a unit based on job classifications, departments, functions, work locations, shifts or similar factors. Any effort by a company to merge the “micro unit” into a broader group of employees will be significantly more difficult. The board held that an employer must now prove that the broader group of employees shares an “overwhelming community of interest” with those in the smaller unit.

The practical consequence of these pro-labor developments is that a union can now target small disgruntled pockets of employees within the larger organization and establish a “toe hold.” Coupling the “micro unit” approach with the new “quickie” election procedures will provide some real challenges for employers and their counsel.

Counseling Your Business Clients

The NLRB landscape has become highly politicized. As a result, changes are being enacted, proposed and drafted on a weekly basis — so every attorney counseling management on general employment matters should either “study up” or quickly associate a “traditional” labor lawyer to assist with these critical issues.

Business clients are faced with limited options to counter these strategic union organizing advantages. The consensus advice is to be pro-active sooner rather than later. Communication and training for all employees in support of the employer’s pro-employee/union free work environment is more important than ever.

Finally, there is insufficient space in this article to detail all the pro-active measures that employers should consider, but here’s a start:

  1. Conducting regular and timely training for the entire management team. Certainly front-line supervision is where the “rubber meets the road.” However, senior management must be fully trained on the issues and capable of lawfully responding and articulating why the employer desires to maintain a pro-employee/union free work environment.
  2. Immediately audit key policies such as the company’s “Position on Unions;” “No Solicitation/No Distribution Rule;” and “Electronic Media Policies.”[3]
  3. Management should anticipate developments that might trigger employee concerns and address those concerns up front. Management must be fully engaged with the workforce and capable of keeping their pulse on the morale of the entire organization — on the “micro unit” level.
  4. A Response Team should be formed to develop a plan to quickly and efficiently respond to employee unrest or union organizing developments.  Time is now of the essence.

Update on NLRB ‘Employee Rights’ Poster

Employers should also note that in response to the federal judge who is hearing challenges to the new “NLRB Employee Rights,” posting requirement, the board has again delayed the effective date until April 30, 2012.

Notes

  1. At the time this Final Rule was adopted, the board consisted of three members. On Dec. 31, 2011, Craig Becker’s term expired. On Jan. 4, 2012, President Obama announced three “recess appointments”: Sharon Block (pro-labor); Terence Flynn (pro-management); and  Richard Griffin (pro-labor).
  2. Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011).
  3. Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). Cases, 47 Tenn. Bar. J. No. 10, at pp. 30-34.

Edward G. Philips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

STEVEN E. KRAMER is a partner with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment, general corporate and sports law. He earned his undergraduate degree from Miami University, a master of business administration in finance from the Univeristy of Louisiana – Lafayette, and his law degree from the University of Tennessee. He served as general counsel for AGC Glass North America from 1990-2002.