As a child, maybe you were told you would get a lump of coal from Santa in your Christmas stocking if you were not a good little girl or boy.
Well, you are all grown up now and if you’re reading this, you are likely an employer. If so, here is your Christmas lump of coal – whether you’ve been bad or good.
On December 26, 2023, the National Labor Relations Board’s new 2023 Election Rule became effective, reducing the time between petition and election. (See Memorandum GC 24-02 at nlrb.gov for a full summary of the rule)
The new rule, modifying a more employer-friendly 2019 version of the rule, is largely a return to the so-called “quickie” or “ambush” election rule of 2014. Elections can conceivably occur within two to three weeks after the employer is notified that the petition was filed under this new rule.
Every change embodied in the 2023 rule is designed to shorten the period between petition and election, significantly reducing the employer’s opportunity to respond to the petition and ensure its employees are fully informed of the pros and cons of union representation.
Labor relations practitioners generally believe that shortened election periods will coincide with greater union election success – when unions already win these elections over 75% of the time.
Pre-election hearings will usually take place within eight calendar days after the petition for election is filed. That is 10 days sooner than under the old 2019 rule. Employers will need to be ready to provide documents and witnesses for the hearing with much less time to prepare.
A postponement of the hearing requires a showing of “special circumstances,” and is limited to two business days absent a showing of “extraordinary circumstances.” The 2019 rule had no time restrictions on postponements.
When an employer receives a notice of the petition of election, it has only two days to post and distribute it to employees – three days sooner than the requirements of the 2019 rule.
The pre-election hearing will address only whether “a question of representation exists,” and collateral issues such as voter eligibility and inclusion are reserved for post-election litigation. The 2019 rule required that inclusion and eligibility issues be determined in the pre-election hearing, leading to sometimes lengthy procedings.
The union isn’t required to submit a written “statement of position” before the pre-election hearing under the new rule, so the employer may not know the particulars of the union’s positions until the hearing begins and the union provides it orally. The 2019 rule required both the union and employer to file written statements of position at least three days before the hearing.
The 2019 rule allowed parties to file written briefs after pre- and post-election hearings. Now it takes special permission from the regional director or a hearing officer to submit briefs.
The election will be scheduled as soon as “practicable” after a decision in the hearing. The 2019 rule included a 20-business day waiting period between the order of election and the election itself – and that is eliminated. Employers will have very little time to campaign and provide information to employees as they scramble to prepare for a pre-election hearing and get notices distributed and posted.
To put all of this in perspective, consider that unions will have months in advance of a petition to recruit and persuade employees, answer their questions, gather supporting information, and thoroughly prepare and campaign for an election. On the other hand, employers may have little information about union activity until served with a petition from the NLRB with very little time to respond.
In a scenario where the deck was already stacked in favor of unions, the 2023 election rule extends their advantage even further.
And don’t forget that the Board’s recent Cemex decision places the burden on the employer to request an election within 14 days notice of the petition when there is a signed-card majority – or the Board may just send you a bargaining order and you have a union – no election needed or conducted (See our article, A new standard for union elections – the Cemex case, in this Resources section)
So what are employers to do?
The most important thing is to create and maintain a strong and effective leadership team so employees are engaged and happy and do not feel a need to reach out for external representation. Remember – studies show that employees leave managers, not companies.
And this requires training in labor and employee relations. Leaders are made – not born. And taking the time to train, mentor and build leaders is often ignored in the push for profit and operational efficiencies.
As we wrote in the Supervisor Training & Development article in this Resources section, “From the candidate for a supervisory position to the seasoned leader, all management benefits from using consistent, proven methods and techniques when interacting with employees.”
Employers that omit leadership training programs do so at their own peril. Employees who are frustrated and upset at their managers will often look for someone who they believe will listen to them and protect them.
When that happens, expect a petition for union representation to follow. Even in companies with unions, there are likely pockets of unrepresented employees who can petition for inclusion in a union when they perceive that their needs are unmet.
Then it is likely that no amount of “cramming” or last-minute campaigning will convince disengaged employees that they are better off without the union.
Don’t let this happen to your company. Be proactive, not reactive. Check out our Services page and contact us today to learn more about the best MARC program for your team.