The Time to Act Is Now

The National Labor Relations Board (Board, NLRB) removed unnecessary barriers and reduced unnecessary delays according to their final rule on the union election process. This ruling has been referred to as "quickie or ambush elections." It was published in the Federal Register on December 15, 2014 and will take effect April 14, 2015.

In their ruling, rules about documents and communications are modernized in light of new technology. Electronic filings and communications will replace paper petition filings and notifications. Election petitions can be filed with the Board and served on the employer electronically. Currently, employers are not required to post a Notice of Petition. However, the new rule requires the employer to post the Notice and may require the employer to send it to all affected employees electronically within two days of receipt.

The Excelsior List deadline moved from seven days to two days after the election order. It also takes on a modern flare, adding available phone numbers and email addresses to the required roster of names, home addresses, shifts, locations and job classifications. The Society for Human Resource Management (SHRM) expressed concern that this mandate raises privacy risks and opposed other changes during the proposed rule stage.

SHRM, along with the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Retail Federation and the National Association of Manufacturers filed a law suit challenging the NLRB's final rule on the union election process. This litigation objects to the privacy risks, but more so to the changes that impact the parties' ability to exercise free speech, when they need it the most. These changes include postponing validating voter eligibility until after the election; limiting employers' ability to seek pre-election Board review and a stay of election; and eliminating employers' right to post-election Board review.

Despite this recent legal action against the Final Rule, employers need to act now to prepare before becoming aware of any organizing activity. Clearly identify who qualifies as a supervisor using the NLRB decision. Review and update job titles, job descriptions and organizational charts to affirm who qualifies.

Review employee handbooks to assure compliance with the NLRB's recent rulings. The Board continues to expand employee rights on social media and recently identified another water cooler when they overturned the Register Guard case. Employees may now use the company's email system for protected concerted activity during non-work time if the employer offers access to email.

Train and hold all supervisors accountable to practice positive employee relations. Employees who have a communication process that effectively addresses work concerns have no need for a union. Train supervisors how to communicate about unions and share their employer's position with employees.

Develop a management response team to prepare draft campaign materials and become familiar with the compressed campaign calendar should a union organizing event arise. There will be no time to this when an election petition is filed. The time to act is now.