by Robert J. Hollingsworth
While the NLRB’s new Employee Rights Notice has recently generated substantial media attention, there are two other developments at the NLRB that could have a far greater impact on employers, especially smaller employers who are not prepared to deal with union organizing.
On December 16, 2011, the NLRB approved new election rules to be effective on April 30, 2012. These new rules are sometimes colorfully described as the “Ambush” or “Quickie” Election Rules. By streamlining the processing of election cases, the NLRB under these new rules plans to hold elections within about 10 to 21 days from the date of the petition for election is filed. This “streamlining” is largely achieved in two ways: (1) by deferring most of the traditional pre-election issues (e.g., whether a particular employee is an exempt supervisor who cannot vote in the election) until after the election; and (2) by eliminating the practice of scheduling elections 25-30 days after the Regional Director directs an election.
To be sure, there has been significant criticism of these new election rules. At least one lawsuit has been filed challenging the rules. But so far we are not aware that any court has blocked these rules from taking effect on April 30, 2012.
The other related development at the NLRB is its recent recognition of “micro” bargaining units. Historically, the Board has favored larger bargaining units where the employees share a community of interest. In recent rulings, however, starting with Specialty Healthcare, 357 NLRB No. 83 (August 21, 2011), the Board has recognized the “micro” bargaining unit requested by the union, even though the petitioned-for bargaining unit could be appropriately placed in a larger unit. As long as the smaller unit is identifiable as a group (e.g., by job title, classification, etc.), the Board will approve this smaller group unless the employer opposing the smaller unit demonstrates that employees in the larger unit share an “overwhelming” community of interest with those in the unit petitioned-for by the union. In other words, the union will get the bargaining unit it wants even though a larger unit would be equally or even more appropriate than the smaller unit.
In sum, the NLRB will allow unions to organize smaller bargaining units that previously would have been viewed as inappropriate because of the community of interest with those in the larger unit. The effect of this will be to allow unions to nibble at employers with organizing focused on small bargaining units. Organizing smaller units will also be easier and less expensive for unions. Once a union gains a foothold by organizing a micro unit, the union can then turn its attention on other smaller units in the workplace or could go after the larger bargaining unit.
Together the quickie election procedures and the unions’ ability to organize micro units present a formidable problem for any employer, particularly small or unprepared employers who do not have a union avoidance program in place. Conducting an election campaign—obtaining professional advice, training supervisors, gathering information for the campaign, meetings and communications with employees—in less than three weeks will be overwhelming for unprepared employers.
Employers should therefore consider whether they are ready for a union election. If you are not ready, seek professional advice. Cors & Bassett attorneys have many years of experience dealing with union organization efforts.