The NLRB ruled in a case entitled “Purple Communications, Inc.” that employees may utilize their work e‑mails for organizing campaigns. More importantly, the Board announced several revisions in its union election rules, including provisions that leave employers less time to react to potential union elections.

In light of these developments, employers need to be more proactive with their employees and to plan ahead.

The new rules are scheduled to take effect on April 14 after having been published for review in December.

Background on new rules

The NLRB says the new rules are aimed at modernizing the union election process, enhancing transparency and eliminating unnecessary litigation and delay.

The fear among management counsel is that these changes will reduce the employer's opportunity to oppose unionization.

Highlights of the new election rules are as follows:

• All documents in a union election may be filed electronically.
• The Excelsior List (election voter list) is now due from the employer within two days of a petition and must include, in addition to names and home addresses, the employees' personal phone numbers, e‑mail addresses, work locations, shifts and job classifications.
• NLRB hearings on the election issues now can be scheduled eight days after filing of the election petition.
• The employer must file its statement of position by noon on the seventh day after the petition is filed.
• The post-hearing review as a matter of right is eliminated.
• Gone is the 25-day waiting period (automatic stay) before the scheduling of an election following a decision.

The upshot of these changes is that a union election can happen very quickly, with little time for the employer to react and prepare.

Ways employers can be proactive

In light of the compressed timelines, employers need to be proactive.  Here are some actions we would recommend:

• Communicate the positive aspects of employment on a regular basis. Employees who appreciate their jobs, the regular pay and benefits they bring and the non-economic upside of their work may be less responsive to union recruiting efforts and the high cost of union dues.
• Assure a safe working environment. Companies should not only provide a safe working environment but should also take every opportunity to reinforce its efforts with its employees. Employees who believe the company is looking out for their best interests are less likely to vote in favor of union representation.
• Determine which employees are supervisors under the NLRB rules and educate these supervisors on the dos and don'ts of a union election.  These individuals not only would be ineligible to vote in a union election but could become allies in the employer's effort to communicate accurate information about unions and their potential impact on the company's bottom line.
• Educate employees as to their rights in a union election.  Employees who learn their rights from the employer typically have more trust in their employer and less desire for a union.
• Educate employees about the strategies they can expect to encounter in a union campaign. Forewarned is forearmed. If the employee knows what tactics are commonly used in an organizing campaign, they may be more adverse to the message.

Proactive communication can help employers oppose unionization, even though the law makes doing so more difficult.

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Patrick K. Wilson is a lawyer with Harrington, Hoppe & Mitchell, Ltd. He can be reached at pwilson@hhmlaw.com or at (330) 392-1541.