National Labor Relations Board (NLRB) Proposes Significant Overhaul of Rules Governing Union Elections
On February 5, 2014, the National Labor Relations Board (NLRB) announced its latest attempt to overhaul union election rules to make organizing faster and easier. The proposed rules are another attempt to push through changes that a federal court invalidated in May 2012 on procedural grounds.
The goal of the rules is to give employers less time to campaign and give unions more information sooner about the employees who will be voting, including their job classifications, personal telephone numbers and e-mail addresses. The rules also limit challenges and postpone the resolution of disputes regarding who may vote. These changes will impact how employers campaign and how unions organize employees.
The NLRB will expedite consideration of the new rules and is expected to issue final rules later this year.
Some of the more significant proposed changes include:
Employers must provide more information about voting employees sooner. Shortly after a petition is filed, the new rules require employees to provide the NLRB and union with the names of potential voters plus each person’s job classification, work location and shift. Employers must also provide the NLRB phone numbers and e-mail addresses. A final list that includes all this information, including phone numbers and addresses, is then given to the union two days after an election is directed. This is in addition to existing requirements that the union receive employee home addresses and names. Bottom line? More direct union access to your employees. In anticipation of final rules, employers should make certain that their existing cell phone, e-mail and electronic communications policies are up to date.
Employers will have to identify issues before hearings or risk waiving them. Pre-Election hearings will now be held within seven days of the petition in most cases and post-election hearings 14 days after the tally of ballots issued at the close of voting. No later than the start of any hearing, an employer will have to identify all the issues it intends to raise and make an offer of proof regarding its evidence. Employers would be barred from raising additional issues later on. At the close of the hearing, an employer will no longer have the right to brief the issues. It is now up to the NLRB to determine if briefs are appropriate. This will make it critical to identify and investigate unit and other issues as soon as a petition is received.
Employers will no longer be entitled to a hearing to determine who votes. Under current rules, the parties have a right to a pre-election determination on significant voter eligibility issues. Under the new rules, employers may not litigate before the vote unless those issues involve 20 percent or more of the voting unit. Instead, these employees are forced to vote under challenge and the issues are reserved for decision after the election. In practice, this means some employees will not know if their votes will count. That can discourage turnout, particularly among pro-Company voters. There also is a risk of abuse. A union can have the best of both worlds – excluding voters after the fact where their votes would prevent unionization and including them over their objection where their votes are not outcome determinative. In a close election, a union (but not an employer) could even go back to challenged voters and question them about how they voted so as to determine which issues to litigate.
The two Republican members of the NLRB dissented. They argued that because eligibility issues are resolved after an election, both employers and employees do not know (i) who may vote, (ii) which voters will be excluded from the bargaining unit, (iii) whether employees are actually supervisors (whose actions bind employers) or employees, and (iv) in the event that the union wins the election, the parties might still be litigating who is in the unit at the same time they are bargaining.
On their face, the proposed rule amendments do not shorten the NLRB's internal practice of trying to schedule stipulated elections within 42 days from the petition. But by shortening the time targets at each step, the NLRB appears to be trying to shorten the overall time to an election. Certainly Members Johnson and Miscimarra read the proposed changes this way. Keep in mind that the current 42-day target is not codified in the existing rules. It is an informal rule that may be modified after changing the underlying procedures without further rulemaking.
At bottom, the shifting election landscape will require employers to react faster to election petitions and do more to prepare for (and hopefully prevent) election petitions before they are filed.