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NLRB Reissues “Quickie Election” Rules: How Employers Should Respond

When a federal court blocked the National Labor Relations Board’s “quickie election” rules in 2012, many thought this reprieve would be short lived. This viewpoint turned out to be accurate, as the NLRB recently announced that it will once again attempt to enact these rules.  These rules likely will survive scrutiny this time and, once they are enacted, they will give union organizing efforts a significant boost. If non-union employers have not already prepared for these rules, they should begin doing so as soon as possible.  

Many will recall that the NLRB first attempted to enact these rules in summer 2011. The rules would have modified the NLRB’s traditional election procedures in a manner that made it much easier for unions to organize. However, business groups quickly challenged the rules. Ultimately, a federal court agreed that not enough NLRB members voted on the rules, and thus struck them down.   
The rules likely will pass muster this time. When the NLRB reissued the rules, it did not make the same mistake it made the last time; all of its members participated in the vote.  Accordingly, employers should not be able to rely on the same arguments they previously raised. It also does not appear that employers will have other strong grounds for challenging the rules, as it is fairly well established that the NLRB has authority to modify its election procedures if it follows the appropriate procedures. 
These rules likely will become effective later this year, after the NLRB spends some time soliciting comments from the public. If the rules become effective as they are currently written, they will help union organizing efforts in the following respects:
•    Speeding up the election process. The new rules contain several provisions that will help unions obtain elections far sooner than they previously could. For example, the rules would permit unions to file election documents electronically, prohibit employers from challenging most election errors until after the elections have occurred and require regional NLRB officials to schedule election dates and hearings more quickly than before. Some experts have speculated that these changes will allow unions to obtain elections as soon as two to three weeks after they first make it apparent that they are attempting to organize a workforce.
•    Helping unions obtain more information about the employees they target. The new rules would, for example, require employers to disclose employees’ telephone numbers and email addresses. This would give unions a direct line to employees. Moreover, if an employer does not maintain an appropriately drafted electronic communications policy, the rules could allow a union to disrupt the employer’s business with pro-union emails. 
•    Making it more difficult for employers to challenge election errors. By prohibiting employers from challenging many election errors until after an election has occurred, the new rules will give unions even more leverage. This change would, for example, make organizing campaigns less expensive for unions. Conversely, an employer may need to expend significant resources to overturn an election that never should have been held in the first place.
    The main takeaway for employers is that it is now even more important to prepare for union organizing campaigns in advance. Because there are myriad rules that govern how an employer can and cannot respond to a union organizing campaign, it is now even more difficult for an employer to learn these rules and communicate them to supervisors before an election occurs. Therefore, it is essential for employers to learn these rules in advance and develop a plan for responding to union organizing campaigns before they begin. As the NLRB continues to make it easier for unions to expand their membership, it becomes even more essential for employers to develop effective union avoidance strategies in advance.     



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