By:  Paul Rosenberg

As described in our blog on January 5, 2012, the National Labor Relations Board’s (“NLRB”) new rules governing union elections introduce a host of changes which will place employers at a disadvantage.  The new rules will go into effect on April 30, 2012, subject to a legal challenge pending in federal court.  However, they are seemingly just the beginning of the NLRB’s concerted effort to drastically change a process which has been in place for several decades.  A recent decision ignoring 75 years of precedence is illustrative.

In 2 Sisters Food Group, Inc., 357 NLRB No. 168 (2011) the United Food and Commercial Workers International Union asked that an election be overturned because the election took place on the employer’s premises. While the Board did not grant the request, it remanded the matter to a regional director, the local official of the NLRB, in charge of administering union elections. In its remand the NLRB laid out four factors for the regional director to consider:

1)            the union’s objection to having the rerun election on the employers’ premises against the employer’s request that it be held on-site;

2)            the employer’s alleged "prior unlawful and objectionable conduct";

3)            the advantage the employer would enjoy based on the election being held on premises it owns or controls; and

4)            potential alternative sites.

Viewed in context with the upcoming rules, the decision in 2 Sisters Food Group, paves the way for off-site elections to become the norm.  The rules’ underlying purpose is to streamline the election process by eliminating an employer’s ability to litigate pre-election unit composition questions. In that same vein, the NLRB will not want to prolong an election’s outcome via litigation over situs issues. As such, to avoid having to determine if a rerun election is appropriate because an election was held on an employer’s premise, it is hardly a leap of faith to see how the Board will rely upon 2 Sisters  Food Group to justify “off-site” elections in the first instance.           

Off-site elections will favor the union. Prior to filing a petition with the NLRB for an election, a union must obtain signatures from 30% of the workers in unit which it seeks to represent. Given this fact, employers rely upon a high voter turnout to surpass the support the union garnered prior to the petition being filed. Off-site elections, however, will decrease voter turnout as some employees will view leaving the workplace to vote as an inconvenience. 

The decision in 2 Sisters Food Group combined with the new rules signal an obvious intent from the Board to preclude employers from participating in the union election process and educating their workers about the potential pitfalls of unionization. UNITE HERE – the largest hospitality union in the United States – will surely ramp up its organizing efforts to capitalize on its new found advantages. Thus, if you have not already done so it is imperative to put together an action plan to ensure that you are equipped with the proper “tool kit” to defeat an organizing drive.