By:  Evan Rosen

Yesterday, the National Labor Relations Board (the “Board”) voted, 2-1, to approve its Resolution to drastically amend the rules governing union elections.  While the Board’s stated reason for the amendment is to reduce unnecessary litigation, it is apparent that this purpose is a sham, and that the real reason is to make it significantly easier for unions to organize employees, especially those in the highly targeted hospitality industry. 

The Board did not vote on the entire proposal detailed in their June 22, 2011Notice of Proposed Rulemaking, but rather on a narrower version focused on representational hearings, appeals, and evidentiary issues. Importantly, however, the Resolution eliminates language restricting a Regional Director from scheduling an election until at least 25 days after the direction of an election. Finally, the other proposed amendments to shorten election times, which are identified in the June 22, 2011 Notice of Proposed Rulemaking, are not off the table; rather, the Board will continue to deliberate on them. The Board will now draft a final rule based on the Resolution and will vote again for the final rule to be issued.  

The Resolution will result in a shorter campaign period for elections and will make it significantly more difficult for employers to appeal unlawful election results. Under current procedures, 95% of elections are held within 55 days of a union filing of a petition for representation. The average length of time is about 38-42 days.   Under the Resolution, this period of time is likely to be reduced considerably because there will be less pre-election litigation, and the Board will no longer be required to wait 25 days to direct an election. Consequently, the Resolution shall restrict an employer’s ability to assess the appropriate unit and effectively litigate the issues. It will also impair an employer’s ability to seek Board review of a Regional Director’s election rulings by making such review “discretionary.” 

The reduction in the election time frame is particularly worrisome because union organizing often occurs “under the radar.” Frequently, union organizers have campaigned for several months leading up to the union’s filing of a petition, and have done so without the employer’s knowledge. Indeed, most unions will not even call for an election until at least 65-70 percent of the targeted workforce has signed “authorization cards” turning over to the union the employee’s right to negotiate his or her wages, benefits, and terms of conditions. 

The new rules are detrimental to employees who will not have the benefit of understanding all of the facts before they are required to vote. The current campaign period of 38-42 days generally provides sufficient time for employers to combat the union’s propaganda and to share their own views of unions with their employees. In contrast, under the Resolution, unprepared employers may lack sufficient time to share the facts with employees and rebut the union’s propaganda and promises. The lack of a clear appeals process may also incentivize unions to unlawfully coerce employees to vote for the union. This will almost certainly result in more election victories for unions.

All hospitality employers should prepare ahead of time to ensure that their workforces do not become susceptible to union organizing. Among other things, we suggest the following action items:

·         Train managers in effective labor relations so they know what to do if a union organizing drive occurs, and what they can and cannot say without committing an unfair labor practice

·         Review and update no solicitation policies and ensure they are uniformly applied

·         Conduct an internal review to determine if there are any issues that may be the impetus for a union organizing drive

·         Conduct a wage/benefit comparison to ensure your practices are competitive with competitors who have unionized workforces

·         Determine if there are additional perks and other benefits that can be given to employees to enhance loyalty for management

·         Prepare campaign materials in advance to thwart a union campaign