On February 5, 2014, the National Labor Relations Board (“NLRB”) proposed sweeping changes to current union election procedures that would speed up the election process, thereby making it easier for unions to win more elections. The proposed rule changes are the same as those that were previously proposed in June 2011 and discussed in our June 29, 2011 Legal Alert. That proposal led to the adoption of a final rule that incorporated only some of the provisions of the original proposal, but that final rule was ultimately derailed by litigation over procedural defects in the adoption of the rule. (See our May 15, 2012 Legal Alert for more information.) With the recent controversy over recess appointments to the NLRB resolved and NLRB now operating with a full, Senate-confirmed five-member complement, the agency has resurrected the proposed rule changes. Not surprisingly, the new proposal was supported by the three Democratic members on the NLRB and was opposed by the two Republican members.
Because the rules are in the form of a new proposal, they must be submitted for public comment, as were the proposed changes in 2011. That proposal garnered some 66,000 comments, which the NLRB claims were evenly split between those in favor of the proposed changes and those opposed. While inviting comments in response to the new proposal, NLRB Chairman Pearce explained that interested parties do not need to resubmit comments that were submitted in response to the June 2011 proposed rules because the agency intends to consider all comments from the earlier proposal. The comment period runs until April 7, 2014 and allows for a reply period until April 14. The NLRB also plans to have a public hearing on the rules sometime during the week of April 7.
In all likelihood, the NLRB will follow the same pattern it did when it originally proposed the changes to election rules. Following the comment period, the NLRB majority will likely issue a modified “final rule” that softens the effect of the proposed changes in response to comments from business but still provides for an expedited election process. The final rule would become effective later in the year, unless of course it is again derailed by litigation, which seems to be the pattern with any action by the NLRB recently.
Assuming the rules do go into effect at some point this year, unions will look to take advantage of the shortened election process to organize a significant number of new members. Employers concerned about unionization among their workforces should consider what steps can be taken now, such as education of their management groups and review of relevant workplace policies, to avoid negative results under the new election procedure.