Unless enjoined, the National Labor Relations Board (“NLRB”) will implement next Monday (4/30/12) its quickie election rules, dramatically cutting in half the approximate 42 days employers previously had on average to educate employees to remain union-free.

Organizing by unions largely goes undetected and achieves high acceptance (65% or more) by the time of the union’s election petition. Come April 30, 2012, employers will likely have as few as 17-21 days to counter months of secret and successful union organizing. As a result, employers will likely have a difficult time remaining union-free given (i) the understandable lack of experience on the part of employers in dealing with unions (with over 92% of the private sector non-union); (ii) employer unfamiliarity with the strict rules governing employer conduct in response to union organizing; and (iii) this administration’s pro-union agenda to further shorten the critical time needed to educate employees.

The April 30, 2012 NLRB rules will also eliminate the prior pre-election hearing process where critical eligibility determinations such as supervisory status could in the past be determined so that employers knew for certain whether their supervisors were excluded from this process and thus eligible to be educated to respond on behalf of management. NLRB’s hearing officers will also be empowered to reject evidence of supervisory status unless more than 10% of the proposed unit is affected; also, the NLRB hearing officer will have the right to deny, limit and shorten the time for post-hearing briefs.

While the prior rules allowed for pre-election appeals of eligibility and other unit issues, any such appeal will now be deferred to the post-election process and will only be heard on a discretionary basis; also, special pre-election appeals to the NLRB will only be for extraordinary circumstances.

It is anticipated that a large stock pile of union election petitions will be filed April 30, 2012 (and soon thereafter) in NLRB regional offices, including New Orleans (covering LA and parts of MS, AL, and FL). Unlike other federal statutes with a minimum number of 15-20 employees required, NLRB elections can be conducted with as few as just two non-supervisory employees in an appropriate unit (including a unit of professionals) which currently can be a small - easy to organize - group.

If you think you could be affected, you still have time to prepare for such a filing. Please do not hesitate to call I. Harold Koretzky at 504-585-3800 or email koretzky@carverdarden.com for any assistance or if you wish to discuss further.