A notice of a petition from the NLRB requires fast but considered action

By Hugh F. Murray, III

Private-sector unionization has continued its long downward trend, with just around 6% of the private-sector workforce now represented by a labor union both nationwide and in Connecticut.

One consequence of this decline is that many employers and human resources professionals have never been involved with or even thought about union organizing and are entirely unfamiliar with the requirements and procedures that govern union organizing drives and subsequent elections. Although such occurrences may be rare, employers should have a basic understanding of the process so that they can make reasoned responses in tight time frames in the event that they receive a notice of a petition from the National Labor Relations Board (NLRB).

Recent NLRB Activity

The NLRB is charged with conducting secret ballot elections to determine whether a group of employees wants to be represented by a particular union.

In recent years, the NLRB has made a major push, both by attempted regulatory change and through its internal processes, to speed up the time between the filing of a petition by a union and an election, looking to push the average time to fewer than 40 days. This means that employers faced with a notice of such a petition will have very little time to develop a response and may unintentionally violate the law or head down a path that is unwise for their business.

When the NLRB receives a petition for an election, it notifies the employer of an initial hearing on that petition. It is common for a union to file its petition on a Friday afternoon and for the NLRB to fax to the employer that afternoon a notice of a hearing to be held in a week or so.

This hearing can be very important, as it will set the parameters of the group of employees who can vote and who may ultimately be represented by the union. In this short time an employer needs to understand whether the group involved is an "appropriate bargaining unit" under the law and needs to understand and show which of its employees are "supervisors" under the precise definition that applies to these cases.

Employer Campaigns

In addition, the employer must understand what it can and cannot do with regard to discussing the election with its employees. Some employers will choose to run a "campaign" during the election, which is allowed under the law, while others may not. Making such a decision requires some advance thought and should not be done for the first time in a panic-stricken, time-pressed manner.

Employers who choose to run a campaign informing employees of issues in relation to the union election need to be careful that none of the management or supervisory personnel breaks the law in what is said to employees or done during the campaign.

The rules related to an employer's conduct during a campaign have been developed over 75 years, and some are a bit arcane. There are certain things employers should say and do and other things they cannot say or do. Trying to understand and apply these rules for the first time under extreme time pressure is unlikely to lead to a reasoned, thoughtful approach to a business problem.

In businesses and industries with low rates of unionization, initial preparation for a union organizing campaign that may never occur may seem low on the priority list, but an hour or two of thought once a year is likely to put the organization in a much better position if a union vote does ever occur. Human resources professionals should take the time to get familiar with this area of HR practice.

Hugh Murray is a partner at Murtha Cullina LLP. He can be reached at hmurray@murthalaw.com.