Continuing its march in apparent lock-step with the goals of organized labor, the NLRB last week proposed sweeping changes to the federal rules governing union organizing elections. Following closely on the heels of its much publicized complaint against Boeing Co., and its lawsuit against Arizona and South Carolina to overturn state constitutional amendments mandating secret-ballot union elections, the NLRB announced in its Notice of Proposed Rulemaking (“NPM") that the proposed amendments seek to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation." In reality, according to dissenting NLRB Member Brian Hayes, the rules will result in the “quickie elections" long sought by organized labor and will “effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining."
Summary of the proposed rules:
A review of the proposed changes reveals that member Hayes may very well be right. Under the new rules, if enacted, hearings on the petition will automatically be scheduled within seven days of the filing and service the petition. The employer will be required to provide the union with a list containing the names, work locations and job classifications of all employees in the proposed unit no later than the start of the hearing. Providing such a list to the union currently does not occur until sometime after the details of the election have been worked out, so the union will be getting the information much earlier in the process. The employer will also be required to prepare and submit in advance of the hearing a complete statement of the issues and evidence to be addressed at the hearing. Any issues not included in the statement (other than jurisdiction) would be forever waived. Again, the effect of these changes is to impose additional requirements on employers in a very compressed period of time, which will make it more difficult to respond to the union’s campaign – unless the employer is prepared in advance.
The hearings themselves are likely to become much shorter and more perfunctory under the proposed rules. The rules would authorize the regional directors to defer litigation of most voter eligibility issues until after the election. The rules would also eliminate an employer’s right to obtain review of regional director determinations prior to the election and would consolidate all election challenges into a single post-election appeals process. Thus, there will be more uncertainty during the election campaign as to who will or will not be part of the unit. Apparently, the NLRB’s approach will be “vote first, then sort it out later."
Finally, the rules would require employers to provide employees’ home phone numbers and e-mail addresses, where available, directly to the union within two days after the details of the election have been set by the regional director. Currently, the eligibility list (which does not require phone numbers or e-mail addresses) is sent to the board within seven days after the election is scheduled. The rules also expressly permit electronic filing of petitions and other documents, and potentially allow the use of electronic signatures to support the union’s showing of interest. Again, the overriding theme of the proposed rules is to provide more information to the union at an earlier point in time and to speed up the entire process.
Although the impact of some of these changes will not be immediately apparent (such as the effect of deferring certain voter eligibility issues until after the election), one thing is perfectly clear: the changes will drastically compress the amount of time between the filing of the petition and the election date. Member Hayes estimates that the new rules will result in elections being held between 10 to 21 days from the filing of the petition. Under the current rules, the median number of days between petition and election is 38 and 95 percent of elections are held within 56 days of petition filing. This is a significant shortening of the time between petition and election.
What does this mean for employers?
By the time a union takes the formal step of filing a petition, it likely has been engaged in an active campaign to organize the employer’s workforce for an extended period of time. The union’s organizers have been meeting with the employees, solidifying relationships, making promises and generally spreading the union’s one-sided story of why the employees should vote to be represented by the union. Indeed, by the time the union feels comfortable enough to file the petition, its support is at its absolute highest point, and it is very common for all of this activity to have occurred in secret, with the employer not even aware that such activity was taking place. A period of 10 to 21 days is simply not enough time for an employer to effectively counteract the union’s message or to provide the employees with the necessary information so they can make an informed choice on what it means to be represented by a union. That is exactly what the unions hope for – catch the employer off guard and unprepared, then force a “quickie" election before employees can be fully educated on the “other side of the story" – namely, the potential risks of unionization.
What options will employers have if the proposed rules are implemented?
The best option available to employers wishing to remain union-free, which actually will become more of a necessity than an option, is to be more systematic in assessing vulnerability to union organizing attempts and to do it early and often. Employers will need to incorporate into their ongoing supervisory training programs union avoidance training that emphasizes early detection of organizing activity, responding to employee questions about unions and effective management techniques that will make employees less inclined to seek out a union. Additionally, employee education and communication programs need to be developed to address topics such as the effect of signing authorization cards, what it means to be represented by a union and the employer’s position on unions. Employers will no longer be able to wait until a petition is filed or there are visible signs of organizing to undertake these efforts. By that time, it will be too late.
In addition, if a petition is filed under the proposed rules, it may now be in an employer’s best interest to become more aggressive in challenging bargaining unit determinations and union misconduct. Employers may be less willing to enter into stipulated election agreements. If an employer is no longer able to obtain a reasonable and fair amount of time during which to inform its employees about the true facts of being unionized, there may be more reason to preserve legal challenges to the bargaining unit, voter eligibility and union misconduct during the campaign.
If these proposed rules become effective, it will be more important than ever for employers to engage experienced outside counsel to deal with the important legal and human resources aspects of remaining union free.