Get All Access for $5/mo

Entrepreneurs Land in the Unions' Cross Hairs New labor law regulations shorten the time period for holding an election after a petition is filed. Employers may want to take proactive steps.

By Jonathan Segal Edited by Dan Bova

Opinions expressed by Entrepreneur contributors are their own.

This year April 15 is not necessarily the worst day for entrepreneurs. It might be April 14, the day the new rules on union elections published by the National Labor Relations Board go into effect.

The purpose of these rules is to shorten the period of time between when a union's files a petition for an election with the NLRB and the election date. Under the new rules, elections will take place probably from two to three weeks after a petition is filed instead of four to six weeks, which is now the case, as the NLRB explains on its site.

The new rules let unions campaign against an employer furtively for an extended period of time but the employer will have only a small window of opportunity after a petition's been filed to listen to employees' concerns, debunk misinformation and explain the potential risks and realities of unionization.

I have had many clients win union elections after five or six weeks, and I'm not sure they would have won with only two or three weeks under these new "ambush" election rules.

The goal must now be to avoid elections in the first instance as opposed to waiting for a petition and trying to win over employees to the employer's view with a campaign. Employers should develop a plan to detect union activity early in the game and have management rapidly respond. The more employees know, the less likely they will be to sign a card that the union can use to petition the NLRB for an election.

Follow these three key elements to create a rapid response plan:

Related: Are Minimum-Wage Activists Trying to Kill the Franchise Model in Seattle?

1. Train supervisors.

Any training should address why there's a need for supervisors to report potential union activity to a designated person or team.

The training of supervisors should start with their role: Supervisors can be compelled by the employer to speak on the company's behalf about why management does not believe a union is the best interests of the company or its employees.

Supervisors should be educated in potential direct and indirect warning signs of union activity and to whom they should report them. And supervisors should receive guidance on what they can and can't say or do according to case law. For example, while supervisors should report warning signs of union activity, they must gain such awareness without interrogating or spying on employees.

Before you train supervisors, determine who they are under the National Labor Relations Act. Don't assume everyone with the title of "supervisor" will be one according to the act. Some won't be. The NLRB is interpreting the term narrowly so a critical analysis must be done for any putative supervisor.

Supervisors are not considered employees under the act and employers can effectively control supervisors' actions.

It would be unlawful to include most nonsupervisors in the training discussed in light of its content.

Related: 'Nightmare Before Christmas': Labor Board Doubles Down on McDonald's Role in Labor Violations

2. Assess the risk.

Have a diverse team assess the level of risk so you don't under- or over-react to actual or potential union activity.

The risk to employers of ambush elections is even greater when you consider the NLRB's decisions about what is an appropriate bargaining unit. In another gift to organized labor, the NLRB has approved the designation of micro-units that could be as small as a department or even a classification of employees.

A union can petition the NLRB for an election if 30 percent of the employees in an appropriate unit sign cards. The smaller the unit, the easier it usually is for a union to have the necessary amount of cards signed.

No employer can take its nonunion status for granted. To the contrary, employers must prepare now for an ambush election from what may be but a small group of employees in their workplaces.

3. Prepare a response.

Developing a rapid response plan is but one key step that an employer should consider. Have campaign materials ready to go on a moment's notice since time is of the essence.

The new ambush rules could be subject to challenge by many business groups. But unless the rules are enjoined, employers will have to play by rules stacked against them in just a few short months.

This piece should not be construed as legal advice or as pertaining to specific factual situations.

Related: The Legal Issues That Could Change Franchising Forever

Jonathan Segal

Partner in Employment Practice Group of Duane Morris

Jonathan A. Segal is a partner in the employment practice group of Duane Morris LLP in Philadelphia and principal at the Duane Morris Institute, an educational organization.

Want to be an Entrepreneur Leadership Network contributor? Apply now to join.

Editor's Pick

Business Solutions

Increase Productivity with This Microsoft 365 Subscription, Now $25 Off

It can make the entrepreneur life a lot easier.

Business News

Apple Pay Later Is Ending. Here's What's Taking Its Place.

The program was available for less than a year.


This Artist Answered a Businessman's 'Powerful' Question — Then His Work Became 'the Poster Child for Juneteenth': 'Your Network Really Becomes Your Net Worth'

Reginald Adams was the executive director of a Houston-based art museum for more than a decade before he decided to launch his own public art and design firm.


Harvard Business School Professor Says 65% of Startups Fail for One Reason. Here's How to Avoid It.

Team alignment isn't nice to have -- it's critical for running a successful business.

Business News

Here's What Companies Are Open and Closed on Juneteenth 2024

Since it became a holiday in 2021, Juneteenth has been recognized by some major corporations as a paid day off.

Growing a Business

I Hit $100 Million in Annual Revenue by Being More Transparent — Here Are the 3 Strategies That Helped Me Succeed

Three road-tested ways to be more transparent and build relationships that can transform your business — without leaving you feeling nightmarishly over-exposed.