Vote Now and be Excluded Later

By Ruder Ware Alumni
May 16, 2014

Our recent blog talked about a proposed rule from the NLRB to establish new procedures for union elections. Known as the “quickie election” rule, it has been proposed by the NLRB for comment although there are strong indications that the rule will be adopted as proposed.

One of the most significant aspects of the proposed new rule is how the NLRB will determine whether or not an employee is eligible to vote in the union election. The current rule allows for a hearing to determine whether or not certain employees would be considered supervisors and therefore ineligible to vote in the election (the most common issue litigated). Under the new rule, issues involving voter eligibility that involve less than 20% of the entire proposed bargaining unit would be decided after the election is held. Thus, certain employees who may actually be supervisors, would be eligible to vote in the election and if they are found to be a supervisor at a later date, the employee would not be included in the bargaining unit.

The significance of this rule change for employers is that an employer may not be able to meet with these employees (who may or may not be supervisors) and discuss the union election or use these employees as part of its campaign against the union election. These employees who may be supervisors are a critical piece of the strategy that an employer can use to defeat a union election, but if their status as a supervisor is not determined until after the election, an important tool of the employer is lost.

Employers must recognize the union election process will be changing significantly under this proposed rule. Employers must develop anti-union strategies now and implement them constantly in order to avoid what has often been called an ambush election petition from a union.

More information about the “quickie election” rule will be included in our upcoming Blogs.

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