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On June 22, 2011, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register proposing rules that, if adopted, would make it significantly easier for unions to organize new members. More specifically, the proposed rules are designed to expedite the representation election process by:
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- Allowing election petitions, election notices and voter lists to be transmitted electronically, thus streamlining the election process for unions;
- Requiring the Regional Director to set a pre-election hearing to begin seven days after a hearing notice is served, thus posing a burden on businesses who might not have immediate access to counsel;
- Requiring parties to state their positions no later than the start of the hearing, and before any other evidence is accepted, or forfeit all legal right to pursue those issues;
- Deferring litigation of voter eligibility issues until after the election, thus casting a cloud of uncertainty over the validity of the election process;
- Requiring the non-petitioning party to produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing, thus making it easier for unions to campaign;
- Requiring employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses, also making it easier for unions to campaign;
- Eliminating the ability to request a pre-election review by the NLRB;
- Consolidating all election-related appeals to the Board into a single post-election appeals process; and
- Making NLRB review of post-election decisions discretionary rather than mandatory.
If adopted, the proposed rules are certain to have a profound impact on the election process. Quite often, the union’s election petition is the first time an employer becomes aware a union is seeking to organize its employees. Since elections typically run their course within 45-60 days, management has an already small window of time to interface with employees and make their case against unionization. Under the proposed rules, however, elections could occur in as little as 10 days. As a result, an employer’s ability to effectively mount an anti-union campaign is essentially short-circuited. Of course, there is no comparable burden on unions as they are free to campaign as long as they please prior to filing an election petition.
In the lone dissenting opinion, board member Brian Hayes expressed concern over the proposed rules by stating: “Thus, 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 the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”
Additionally, the proposed rules would substantially limit the opportunity for full evidentiary hearing or NLRB review on contested issues involving, among other things, appropriate unit, voter eligibility and election misconduct. The NPRM provides a 60-day comment period for the rules, followed by a 14-day response period. In addition to issuing the NPRM, the NLRB has issued a “fact sheet” document outlining various aspects of the NPRM. The fact sheet is available at http://www.nlrb.gov/Proposed%20Amendments.
The Employee Free Choice Act may have died in the Senate, but the NLRB, through decision and rulemaking, is continuing to bring the Act’s goals to fruition without the need for congressional action.
© 2013 BARNES & THORNBURG LLP
