Union elections will come easier and speedier after the Board finalizes a highly anticipated rule but the Chamber of Commerce has recently challenged it, arguing that the speed that the rules create improperly restricts employers’ ability to communicate with workers, in violation of the First and Fifth Amendments.
After public hearings on the proposed rule changes were held earlier in 2014, it was expected that they would be finalized. However, it doesn’t reduce the importance of the Board’s adoption of the finalized rule amending its procedures in representation cases. Due to the rule’s effect on an employer’s ability to counteract union organizing, the Chamber of Commerce recently filed suit challenging their legality under the First and Fifth Amendment.
As for the rules themselves, they prevent an employer from challenging voter eligibility issues until after an election is held, and remove the normal 25-day delay that usually occurs between when a regional director directs an election and the actual election is held. Moreover, the rules provide that a pre-election hearing is to occur eight days after a notice of hearing is served. The effect these changes should have is unmistakable. Over the past decade, the median time-frame from petition to election has been 38 days. These new rules changes are anticipated to reduce that number to somewhere between 14-21 days on average, with elections now being theoretically possible after as few as 10 to 12 days. On another front, the rules require employers to identify employees who are eligible to vote by providing phone numbers and email addresses, as opposed to the previous requirement to provide only names and addresses. With more information, unions are able to contact eligible employees more easily.
Although it will not affect the rules until a court decision, the Chamber of Commerce’s lawsuit alleges that the rule changes violate the First Amendment because they restrict employers’ ability to communicate with workers. The suit also alleges a violation of the Fifth Amendment, in that it deprives employers of due process rights in the NLRB’s representation case proceedings.
Unless the new rule is overturned (something that may not occur for some time), it will affect any employer who is at risk of unionization. Given the short time frame that these rules create and the removal of some things that the employers could rely on to slow down the election process, employers should work with counsel to understand the new rules before they are hit with an election petition. It is important as ever to develop strategies to counteract unionization before a petition is filed.