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You're About To Get Ambushed

Authored by attorney Anne G. Bibeau

They’re here. For a brief period it appeared the danger had been averted, but no. The National Labor Relations Board’s (“NLRB”) “ambush” election—also known as “quickie” election—rules go into effect on April 14, 2015.

The NLRB’s new rules will dramatically accelerate union elections. Whereas previously it could take upwards of a month after a union petition for an election to be held, now the election may occur in less than two weeks. The employer is subject to a cascading list of requirements, each with a short-fuse deadline. Here are the highlights:

- Within two days of receiving the union’s petition, employers have to post and distribute a notice informing employees that a petition has been filed and an election may follow.

- The NLRB will hold a representation hearing, if at all, within eight days of the union’s petition.

- Before the hearing, the employer must provide the NLRB and the union with a list of the employees’ names, job classifications, shifts, and work locations.

- The employer must submit a detailed position statement within seven days of the union’s petition, identifying all objections that the employer has regarding the petition, including issues concerning eligibility, inclusion or exclusion from the unit, supervisory and managerial status, and whether the unit that the union seeks is appropriate. Any issue not raised in the employer’s position statement is waived.

- Within two days of the NLRB’s ruling directing the election, employers must provide the union with employees’ home telephone numbers, home addresses, personal email addresses, and other information.

The employer is greatly disadvantaged by these rules. Beyond the lost opportunity to raise challenges at the pre-election hearing, employers will have less time to express their views on unionization to their employees. It is not unusual for an employer to be unaware that a union drive is afoot until the union files an election petition. An employer surprised by an election petition may find that it is too late to win employees’ votes.

The best defense is to prepare before the employees consider unionization. You should have a response team ready to spring into action the moment you receive a union election petition. The team should have a point person, key managers, and your legal counsel. All supervisors and managers, whether on the team or not, should be trained on what they can and cannot say to employees regarding unionization and how to respond to unionization efforts. They need to know who in the company to contact if they receive a union petition, and they need to know the urgency. This isn’t something that can sit in their Outlook inbox for a day or two while they finish up payroll.

In addition to planning your response to a union election petition, you should be taking steps to reduce the likelihood of a petition. Start by with your frontline supervisors. How do they treat employees? Are they supportive leaders, or are they bullies? Do your employees trust them or hate them? A bad supervisor will drive employees to a union. A human resource professional can facilitate communications between employees and management, allowing employees to be heard and feel valued. If the relationship between employees and managers is good, employees will see that they do not need a union.

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