How to Prepare For and Win an NLRB ‘Quickie’ Election

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How to Prepare for and Win an NLRB ‘Quickie’ Election Edward V. Jeffrey, Esq. Michael J. Passarella, Esq.

May 6, 2015


About our Firm ►Represents management exclusively in every aspect of labor, employment, benefits, and immigration law and related litigation. ►Over 770 attorneys in 56 locations nationwide. ►Current caseload of over 6,500 litigations and approximately 550 class actions. ►Leading labor and employment firm in healthcare and assisted living.


Our Labor & Preventive Practices Group For over 55 years, Jackson Lewis has represented clients in thousands of matters before the NLRB, state labor boards, arbitrators, mediators, government agencies, and state and federal courts. We regularly advise employers regarding union organizing, protected concerted activity, NLRB elections, corporate campaigns, neutrality agreements, collective bargaining, grievance and arbitration proceedings, unfair labor practices, work stoppages, purchase/sales, reductions and reorganizations, as well as the entire range of pre- and post-hire employee relations issues.


Good morning, there’s a fax/email here from the NLRB…


The Petition


Impact of New Rules: Immediate Action Required

Day 1 • Petition served directly on employer and NLRB. • NLRB orders hearing (if needed) within 8 days.

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Day 3 • Employer must post official notice regarding petition and distribute it electronically to employees. Failure will be “objectionable” conduct.


Impact of New Rules: Immediate Action Required

Day 1 ►

Day 3

Day 7

Day seven: – Must file a detailed statement of position (SOP) by noon: state legal position on appropriateness of unit. – Identify employees whose eligibility to vote the employer intends to contest and legal bases for each such contention. – Specific business payroll information. – Information regarding employees in the petitioned-for unit and the employer’s proposed unit.

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Impact of New Rules: Immediate Action Required

Day 1 ►

Day 3

Day 7

Day 8

Day eight: – Hearing day. If no hearing, election agreement likely. NLRB may refuse to hold a hearing: • Evidence limited to “question[s] concerning representation” (QCR). • Disputes over unit composition or voter eligibility (supervisory status, “confidential,” temporary, or casual employee status) may be limited to post-election litigation.

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Impact of New Rules: Immediate Action Required

Day 1 ►

Day 3

Day 7

Day 8

Day 10

Day ten: – Within 2 days of the election agreement (or the RD’s decision), the employer must provide to the NLRB and the union a list of voters: • Full names • Work location, shifts, job classifications • Home address, personal email address and cell phone number

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What are the Legal and Practical Ramifications? ►

Elections Conducted as Quickly as Possible

Election Now, Hearing Later

Vote Now, Understand Later

Infringing on Employer Free Speech

Loss of Privacy for Employees

See comment from dissenting NLRB Members.

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Early Warning Signs of Union Activity: Critical to Know and Report


Late Warning Signs: Employees Refer to Union Cards


A “Typical” Pre-April 14 Campaign


Time to Communicate Greatly Reduced


Campaign Communications: An Overview


Campaign Communications: An Overview


Campaign Communications: An Overview


Campaign Communications: An Overview


Campaign Communications: An Overview


Quickie Elections: One Month In

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In the first two weeks following the effective date of the Rule, petitions for election have doubled over typical period.

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Too early to predict if increase will continue, but the new rules will help unions win elections.


Recommendations for Employer Consideration

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Identify and Prepare to Address Underlying Issues and Vulnerabilities

Prepare Pro-Active Communications to Staff

Conduct Management Training

Prepare Campaign Calendar for Shortened Election Cycle


Recommendations for Employer Consideration

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Identify and Mitigate Legal Vulnerabilities

Conduct A Bargaining Unit Analysis and Prepare a Litigation Plan

Develop and Train a Rapid Response Team to Address Labor Issues

Hire and Manage to Create the Best Possible Workforce


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