The controversial new representation case rules of the National Labor Relations Board (“NLRB” or the “Board”) have survived initial court challenges and, as such, continue to pose difficulties for employers seeking to remain union-free.
The Initial Court Rulings
On July 29, the U.S. District Court for the District of Columbia rejected claims by the U.S. Chamber of Commerce and allied groups that the new rules exceed the Board’s statutory authority, violate the First and Fifth Amendment rights of employers, and run afoul of the Administrative Procedure Act. An appeal is likely.
The court’s decision came on the heels of a ruling by the U.S. District Court for the Western District of Texas to dismiss similar claims by the Associated Builders, its Central Texas chapter, and the National Federation of Independent Business. The Texas ruling has been appealed to the U.S. Court of Appeals for the Fifth Circuit.
The Nature Of The New Rules
Dubbed the “quickie” or “ambush” election rules by their detractors, the rules (i) accelerate the scheduling of a representation election when a union petitions the Board for recognition as the certified bargaining representative of a group of employees; (ii) facilitate the union’s ability to communicate with employees in the proposed bargaining unit; and (iii) restrict the employer’s right to challenge the union’s petition prior to the election.
To illustrate, under the new rules, a representation election may be scheduled to take place as early as two weeks after the union files its petition with the Board. The employer must promptly notify employees of the union’s petition, in many cases via company email. Once the election is scheduled, the employer also must give the union, among other information, the personal email addresses and cell phone numbers of affected employees if this information is on file.
Restrictions On Employer Challenges
If the employer wishes to challenge the petition, it must submit a “statement of position” to the Board within seven days. This document must identify and provide detailed job-related information about each employee in the proposed bargaining unit, explain why the proposed unit is inappropriate, and indicate how the flaw could be cured by adding or removing employees from the group. Moreover, any basis for challenging the petition that is not raised in the statement of position will be deemed forever waived.
In most cases, the hearing on an employer’s challenge will be scheduled to take place only eight days after notice of the union’s petition is provided to the employer. Thus, challenging the union’s petition will involve an intensive sprint to compile the statement of position and prepare for the hearing. This may prove difficult for small to mid-sized businesses, as the employer will simultaneously need to respond appropriately to union rhetoric, address employee questions and concerns, and mount its own communications campaign.
Recommendations For Employers
As legal challenges to the new rules have yet to gain traction, and may potentially not gain traction at all, non-unionized employers that wish to remain union-free should consider promptly taking the following steps:
- Prepare campaign communications now – before a union organizing campaign gets under way. Having talking points, letters, FAQs, fact sheets, and related communications ready in advance will be critical, as many employers may not have sufficient time to pull such materials together after a petition is filed under the new fast-track rules.
- Make sure that policies on email use, solicitation, distribution of literature, and third-party access to the premises restrict union proselytizing to the extent permitted by law. While employees have some rights to discuss unionization at work, employers should know the limits in order to lawfully enforce appropriate policies.
- Review pay, benefits, and workplace dynamics to determine if employees may have an obvious reason for seeking out a union. Factors such as lagging pay rates, abrasive managers, and unaddressed employee concerns may make the workplace fertile ground for a union’s pitch.
- Address such issues before a union-organizing drive becomes apparent. In this regard, making employee-friendly changes during an organizing campaign may constitute an unfair labor practice, as the NLRB may perceive the improvements as an implicit promise of benefits for voting against the union in the election.
- Train managers and supervisors in the “dos and don’ts” of handling issues that may arise in relation to a union organizing campaign. Inadvertent missteps may constitute unfair labor practices that could further disadvantage the employer in its efforts to stay union-free.
Please contact us if you have questions about the NLRB’s new representation case rules or otherwise need assistance with labor law matters. We would be happy to help.