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Employers Need Rapid Response Plan to Counteract New NLRB Union Organizing Rules

April 14, 2016 marked one year since the National Labor Relations Board (NLRB) enacted new rules truncating union representation proceedings. The NLRB celebrated this anniversary by releasing new data comparing representation case filings, processing and results under the first year of the new rules as compared with the same period one year prior.

According to these new figures, employers have less time than ever to prepare for union elections. The new election rules have drastically reduced the time between a union’s filing of a petition for an election and the date of the election from 38 to 23 days. As a result, employers now have on average 15 fewer days to respond and inform employees of the possible consequences of electing a union to represent them. Under these new rules, unions choose when to file the petition and have significant deference in determining who is eligible to vote and who will be in the bargaining unit.  Employees have less time to consider the pros and cons of having a union. At the same time, employers have less time to prepare for the election and talk to employees about their options.

As a result of the new rules, employer representatives expected to see a significant increase both in the number of union representation petitions filed and in the union win rate. However, the data suggests that unions may still be grappling with how to best navigate the new rules. The number of petitions filed by unions has not increased significantly from the year before the truncated rules became effective: 2,141 (April 2014 – April 2015) to 2,144 (April 2015 – April 2016). Unions won 71% of elections in 2014, versus 70% in 2015. The unions’ win percentage increases to 74% for so-called micro-unit petitions. These are petitions consisting of bargaining units of 20 or less employees. The unions’ ability to organize such small units became possible in 2011 when the NLRB overturned 37 years of NLRB precedent (see Specialty Healthcare). Because of the higher success rate, it is anticipated unions will focus on and increase the number of petitions filed to organize micro-units in the coming years.

Employers must be prepared, with a rapid response plan in place to address a union petition when and if it is filed.  Now is the time to prepare. There will not be enough time once the union petition is filed.

What is often not discussed when looking at the new NLRB rules is how employers can use the rules to their benefit in certain situations. The discussion surrounding the new rules has primarily focused on applying the rules to unions seeking to organize employees. But the truncated rules apply to petitions filed by employers seeking to decertify the union, as well. These employer-filed petitions, or “RM Petitions,” seek an election to demonstrate that the union has lost the support of a majority of their employees. Just as the time has decreased for unions seeking to certify a union, it has decreased from 38 to 26 days for employers seeking to decertify a union. As a result, unions have less time to respond to an employer’s petition to decertify the union. It appears the new rules are helping employers more than unions. Employers’ success rate in RM Petitions has increased from 61% (the year prior to enactment of the rules) to 71% (the year following enactment of the rules). Accordingly, simply because an employer may already be unionized, the new rules cannot and should not be forgotten.

The decrease in time between petition and election for both union certification petitions and employer decertification petitions means (1) an employer must be prepared with a rapid response plan prior to the union filing a petition for a union election and (2) an employer must determine if and when it is feasible to file a decertification petition.

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