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I was on my high school track team. My favorite race was the 100-yard dash. I distinctly remember practicing how to spring quickly out of the starting line blocks when the gun fired. The faster I jumped out of the blocks, the greater the odds of winning.
This image came to mind when I met last week with the Regional Director of the National Labor Relations Board (the “NLRB”) for Region 12. Region 12 covers most of Florida (excluding the Panhandle), southern Georgia, Puerto Rico and the U.S. Virgin Islands. The Regional Director discussed the new NLRB rules that give unions a “jump” on unionizing private sector employees.
In the past, after a union filed a petition for an election allowing employees to vote on whether to unionize, an employer had time to request a hearing on disputed pre-election issues. These issues included whether the union had requested an appropriate group of employees who could vote, whether certain employees should be excluded from voting, and other important pre-election matters. Once these issues were resolved (or if they did not exist), the NLRB usually would schedule an employee election 40 to 42 days out. This had been the practice for at least the last five decades.
Starting today, however, the NLRB is speeding up the process and allowing unions to obtain “quickie” elections. Now if there is a dispute regarding pre-election issues, the NLRB can schedule a hearing as early as 9 calendar days after the filing of a petition. The NLRB also is going to resolve these issues much faster. In the past, pre-election hearings could last for a month or more. Now, hearings may last just a few days.
Based on the new rules, if there are no issues to be discussed (or after disputes are resolved at a hearing) an election is likely to occur in fewer than 30 days. Commentators have noted that elections could be held in a much shorter period of time (as fast as 11 days after a petition is filed). Certainly, this will not give an employer sufficient time to respond to a union-organizing drive (which is usually kept secret by the union until it files a petition). It also will hinder employers’ ability to advise employees effectively on the pros and cons of unionization.
A union organizer recently made it clear to me that his union wants the new “quickie” elections. As he explained, “When we file a petition, we are ready to go to an election. We have already spoken with the employees. We do not want to go to a hearing. We want a fast election. If things slow down, it gives employers time to do their ‘union busting.'” (Really?)
Clearly, unions believe that if they can jump out of the starting blocks faster than employers, then they are more likely to cross the finish line first – winning an election and representing the employees in collective bargaining.
There is more to come on this issue. The U.S. Chamber of Commerce and other business groups have filed lawsuits in Washington, D.C. and Texas, arguing that the NLRB rule changes are arbitrary, inconsistent with the intent of the National Labor Relations Act, and significantly infringe upon employers’ free speech right to explain their position on unionization to their own employees.
So, employers and unions — On Your Mark, Get Set . . .