NLRB Proposes Major Changes to Election Process
First, there was the Employee Free Choice Act, which has never been made law, which attempted to make it easier for a union to become the certified representative of an employer by taking away the employees’ right to vote. While that proposed legislation is lying dormant, employers are now going through another “there you go again” moment with the nation’s labor laws. On June 21, 2011, the National Labor Relations Board (NLRB) proposed significant changes to its election procedures. The bottom line is that the NLRB wants to expedite the election process by, in practice, giving employers a much shorter period of time within which to respond to a union petition for representation. The proposed rules will put employers at a greater disadvantage in communicating with its employees its views about the effects of unionization. The reason? The petitioning union has had weeks or even months privately campaigning the targeted employees without the employer’s knowledge. By the time the employer learns of the petition, it is already behind the eight ball and must mobilize its resources to fight against the union propaganda. Ironically, the current rules already limit the employer’s ability to exercise its First Amendment rights in opposing unionization by forcing an election typically within 30 days of a direction of election. The Board’s plan to expedite the process even further is confounding, not just to employers but to the voter-eligible employees who may want to hear the employer’s arguments against unionization before they vote.
The Board’s Notice of Proposed Rulemaking states that the proposed amendments are designed to fix flaws in its procedures that build in unnecessary delays, allow wasteful litigation, and fail to take advantage of modern communication technologies.
Some of the key amendments to the current NLRB election regulations would seek to accomplish the following:
- Permit election petitions, notices, and voter eligibility lists to be transmitted electronically (which further allows the Board to shorten the employer’s deadline to provide the voter eligibility list from 7 days to 2 days);
- Forgoing formal pre-election hearings with the assistance of counsel concerning voter eligibility in favor of allowing those concerns to be addressed via the challenge procedure at the election site (in the mandatory absence of the employer’s legal counsel);
- Provide the Regional Director with authority to set a pre-election hearing to begin seven (7) days after a hearing notice is served and a post-election hearing fourteen (14) days after the tally of ballots;
- Provide parties “a description of NLRB representation case procedures, with rights and obligations, as well as a ‘statement of position form’, which will help parties identify issues they may want to raise at the pre-election hearing”;
- Mandate that parties submit their positions no later than the start of the hearing, before any other evidence is accepted;
- Eliminate pre-election requests for review and defer decisions “on virtually all issues heretofore decided at the pre-election stage in the small percentage of contested cases”; and
- Eliminate any automatic right to post-election Board review of contested issues.
The Board invites comments on the proposals in two ways: through a public Board hearing scheduled for July 18, 2011; or though a 60-day period for written comments, with 14 days for replies, that may be submitted by mail to the Board’s Washington D.C. headquarters or electronically at www.Regulation.gov.
Notable Board Member Dissents
Board Member Brian Hayes vigorously opposes the proposed rules. Hayes has stated that “post-election issues have heretofore been limited to election objects and challenges. Now, with the shift of virtually all pre-election issues to the post-election phase, the majority substantially increases the potential costs to all employers who have the temerity to attempt to conduct normal business operations while contesting legitimate election concerns. Of course, there is no comparable burden on unions.” Hayes also noted that “by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought after “quickie election” option, a procedure under which elections will be held in 10 to 21 days from the filing of a petition.” This will effectively “eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”
If adopted, the NLRB’s proposed amendments will make an employer’s task in opposing union representation more difficult than it already is. We will continue to monitor and update our current and prospective clients on the rule-making process. Please contact John K. Baker, George C. Morrison, or any member of our Labor and Employment Group for further assistance, including the facilitation of the submission of your comments to the NLRB.