In June, the National Labor Relations Board (the "Board") published proposed amendments that would significantly change how quickly union elections are processed and conducted by the Board. The Board held hearings on the proposed amendments in mid-July. It will receive written comments until August 22 and receive replies to those comments until September 6. If finally promulgated as proposed, the amendments will be the most significant changes to union election procedures since 1977. These amendments will, among other things, result in elections in as few as 21 days. And, employers who have not anticipated a possible union election will find that brief period consumed by rushed hearings about the scope and composition of the bargaining unit.
If these regulations are finalized as proposed, any employer who wants to ensure that its operations remain union-free will need to consider (1) openly discussing the threats of unionization with employees before any signs of a union campaign are afoot; and (2) strategically organizing work groups and supervisory roles and relationships to maximize the possibility of winning a union election if one occurs under these new high-speed procedures.
The Board's Democratic majority states that the purpose of the proposed amendments is to "reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing." Board Chairman Wilma B. Liebman states that conducting secret-ballot elections is "one of the most important duties" of the Board, and she argues that the current procedures "build in unnecessary delays ... encourage wasteful litigation ... reflect old-fashioned communications ... and allow haphazard case-processing." Chairman Liebman concedes that the proposed rules will be "controversial" but argues that the amendments are necessary in order to fulfill the Board's responsibility to "better serve the employees, employers, and unions that participate in the election process." Chairman Liebman's term on the Board expires on August 27, 2011, approximately two weeks before final comments on the proposed rule are due.
Member Brian Hayes, the sole Republican on the Board, dissents. He opines that there is no need for faster elections, stating that the supposed "problem" that the Board is seeking to address through the proposed changes is "not that that representation election process generally takes too long," but that "unions are not winning more elections." Unions in the U.S. today represent only 6.9 percent of NLRA-covered workers in the private sector.
In fact—and ironically—elections are happening faster than ever, and unions are winning more of them. Between 1975 and the last decade, the median time from petition to election has dropped from 50 to approximately 38 days. And the average union win rate has climbed from about 50 percent over the last 20 years to almost 68 percent in the last two years. While almost all observers believe that faster elections will mean an even higher union win rate, this may happen at the expense of poorly-informed employees, who may have heard little from management before voting. To the extent these employees will subsequently be disappointed by the union's inability to deliver at the bargaining table what it promised while secretly soliciting employee support, employers are likely to see contentious first-contract negotiations, more labor unrest, and an increase in decertification petitions filed by disappointed employees.
In short, these proposed regulations seem designed to address a problem that does not exist, and likely will spawn greater problems (both at the bargaining table and in litigation) when employees find themselves represented by unions that misled them during a sharply-abbreviated campaign process.
The changes proposed by the Board include the following:
Current Rule: Secret Union Campaigning for Up to One Year. Under current procedures, a union is not required to notify the targeted employer that it is campaigning, whether by soliciting employee signatures on authorization cards or on a petition that asks for an election or authorizes the union to represent the employees for purposes of collective bargaining. When the union has at least 30 percent of its proposed bargaining unit (the "voting unit") signed up, the union files an election petition with the Board's Regional Office. That is often the first time the employer learns of the union campaign. The union must then file the signed cards or employee petition with the Board's Regional Office. The Board calls these documents the union's "showing of interest." The showing of interest generally must be filed within 48 hours of the union's filing of the election petition. Under current procedures, the employer never gets to see the showing of interest, and that will not change under the newly proposed rule.
Employee signatures on the showing of interest are valid for up to one year. Unions typically wait until they have at least 60 percent of the voting unit signed up before filing their petitions. So, even under current rules, the union's campaign propaganda may have settled deeply into the consciousness of employees by the time the employer learns of the campaign; therefore, the employer is playing catch-up from the get go.
- Proposed Rule: Secret Union Campaigning for Up to One Year, But Union Must File Showing of Interest 48 Hours Earlier. The union would still be permitted to organize in secret for up to one year, but it would now be required to file its "showing of interest" simultaneously with the petition. This is the only change in the proposed rules that arguably imposes a shorter timeline on the unions.
The Democratic Board's explanation of the proposed rule does not explain why that one-year period is not also being shortened to achieve the Board's stated objective of "streamlin[ing] …pre-election procedures." In short, why should unions receive up to one year to campaign, and employers only a few weeks?
Current Rule: The Employer is Not Required to Provide the Union with Employee Information Until an Election is Scheduled. Under current procedures, the Board's Regional Office determines if there is a sufficient showing of interest among employees to hold an election before requiring the employer to provide employee information to the union. The Regional Office checks employee signatures against a confidential list of employees in the petitioned-for job classification to make sure that the union has at least 30 percent support for an election. The union does not get that list unless an election is ultimately agreed to by the employer or directed by the Regional Director after a hearing. In that event, the employer has 7 days to provide the Board with a copy of the list, which must include the targeted employees' full names and home addresses. The Board then shares that list with the union, and the union is entitled to see it not fewer than 10 days prior to the election. This current rule is designed to allow the union to communicate further with the employees through the mail during the campaign period leading up to the election.
- Proposed Rule: Employee Information Must Be Disclosed Before an Election has Even Been Scheduled. The proposed rule would require the employer to provide the full names, work shifts, work location, and job classification for every employee whose job classification is identified in the union's petition and serve that information directly on the union, as well as filing it with the Regional Office. This would be done before the Board has even determined if there is a sufficient showing of interest. Thus, unions will surely file some petitions with little support for the sole purpose of getting this information.
Even More Sensitive Employee Information Must Be Disclosed Once an Election is Scheduled. If an election is scheduled, the proposed rule would also require the employer to provide the union with the home phone numbers and email addresses of each employee in the voting unit, as well as each employee's home address. Only full names and home addresses are required by current law. In addition, these so-called Excelsior lists will have to be provided to the union and the Regional Office within two days of the direction of the election or the Regional Director's approval of the parties' election agreement.
Current Rule: Election Notice Postings Not Required Until an Election Has Been Scheduled. Under current law, the Employer is not required to post any notice of the election until three full days prior to the election.
- Proposed Rule: Election Notice Postings Required Before an Election Is Even Scheduled. The Regional Director would serve the "Initial Notice of Election" with the notice of hearing, and the employer would be required to post it immediately. It would state that a petition has been filed, indicate the voting unit sought by the union and the name of the union, and provide a "brief description" of the procedures to follow. It would also provide employees with the Regional Office's website address for further information. Thus, a posting could be required with little or no showing of interest to support a union's petition that has been filed for the sole purpose of obtaining the employee lists described above.
Current Rule: Hearings Required Within 14 Days; Elections Generally Within 6 to 8 Weeks. Under current procedures, if the parties cannot reach an agreement on the scope (e.g., single plant versus multi-plant) and composition of the unit (i.e., job classifications eligible to vote) and where and when the election will be held, a hearing is scheduled by the NLRB's Regional Office to be held within 10 to 14 days of the filing of the union's petition. In the last decade, agreements have been reached in 86 to 92 percent of all cases, and almost all of those elections are held within 42 days of the filing of the petition. (Part of the reason for this is that the Board's General Counsel has, for almost two decades, directed the Regional Offices not to approve election agreements that provide for elections more than 42 days after the filing the election petition.)
But, if a hearing is required, it typically lasts for a day or two, and occasionally longer. The Regional Director then issues a Decision and Direction of Election ("DD&E"), usually within one or two weeks of the close of the hearing. And, the election is then typically held 25-30 days thereafter. So, even where a hearing is required, in the vast majority of cases the election is held within 56 to 60 days of the union's filing of the election petition. As noted above, the median time over the last decade has been 37 to 38 days.
- Proposed Rule: Hearings Required Within 7 Days; Elections Could Be Directed Within 21 Days. Under the proposed rule, the hearing would be scheduled within 7 days of the filing of the petition. So, the employer would have 7 fewer days to prepare for the hearing. Prior the hearing, at a time directed by the Regional Director, the employer would also be required to file and serve its "Statement of Position"—a new pleading requirement—identifying what job classifications it believes belong in the voting unit and "identify[ing] the most similar unit it concedes is appropriate." The employer will be deemed to have waived any issue not identified in that pleading. Thus, the first seven days of the shortened campaign period will be spent preparing to litigate, even if the parties ultimately reach an agreement.
The union will also be required to file a Statement of Position and would be required to do so with its election petition. But the union would essentially have an unlimited amount of time to do so, since the union is singularly in control of when it files its election petition.
- Proposed Rule: Fewer Agreements, More Litigation, and Faster Elections. Three kinds of election agreements would still be allowed ("Stipulated Election Agreements" are by far the most common), but unions would no longer have any incentive to agree to hold elections within the old 42-day period. Instead, most union will likely demand that elections take place within 25 to 30 days of the filing of their petitions. The employer's only means to buy more time for election campaigning would then be to litigate scope and composition issues at a hearing. So, ironically, these proposed rules may foster more litigation, not less.
- Proposed Rule: No Hearing Unless at Least 20 Percent of the Union's Proposed Unit is at Issue. While employers may want to buy time by litigating the scope or composition of the unit, the Board's new rule would defer deciding such issues until after the election unless at least 20 percent of the union's proposed voting unit is at issue. Even hearings that have begun will be summarily terminated "if, at any time during the hearing, the hearing officer determines that the only genuine issues remaining in dispute concern … less than 20 percent of the unit …."
Instead, the Board would "direct" an election to be held as few as 12 days after the close of the hearing without deciding who belongs in the unit. So, up to 19.99 percent of the voters would not know, when they cast their ballots, whether they will ultimately be represented by the union, and the other 80 percent would have to decide if they want to be represented by a union that would also include that uncertain constituency. In short, employees would be forced to vote without knowing exactly who it is that they are throwing their lot in with.
The ballots of those whose inclusion remains undecided would be segregated and only counted if it would be outcome-determinative. In that event, the status of the unresolved voters would then be determined as part of the post-election hearings that may be scheduled to resolve election objections and other challenges to voters' ballots.
In short, an election that is two to four weeks faster is being accomplished at a cost of markedly enhanced uncertainty about exactly who the union would represent if it does win the election.
Current Rule: Pre-Election Board Review of Decisions Available. Under the current rule, either party can request Board review of decisions by Regional Directors prior to balloting. In fact, to allow enough time for such review, balloting generally may not occur earlier than 25 days after a Regional Director's DD&E. Pre-election decisions for which a party does not request review are waived. However, Board review is discretionary and balloting proceeds absent an order to the contrary by the Board.
- Proposed Rule: No Pre-Election Review. Pre-election review of a Regional Director's decision would not be available; instead, any decisions not rendered moot by the election results would only be subject to review post-election. The Board claims that "consolidating all Board review post-election ... [would] relieve parties of the burden of petition for pre-election review in order to preserve issue that may be rendered moot by the election results, and even if that is not the case, would allow parties to raise all issues in a single petition."
Current Rule: Board Must Decide Post-Election Disputes. The Board may deny review of pre-election disputes but is required to decide most post-election disputes.
- Proposed Rule: Board Can Deny Review. The Board will have discretion to deny review of any ruling, pre- or post-election. Instead, the Board intends that the Regional Directors, whom it describes as "member[s] of the career civil service," would decide a much higher percentage of all such disputes.
Current Rule: Electronic Filing Not Permitted. The Board and parties may generally not file election-related documents electronically.
- Proposed Rule: Electronic Filing Encouraged. Election petitions, notices, and voter lists may be transmitted electronically, and the NLRB Regional Office could contact parties and individual employees by email. In addition, the final voter list would be produced—when possible—in electronic form and the final voter list available to all parties would include phone numbers and email addresses.
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If this proposed rule becomes law, it will obviously further encourage unions to do all they can to keep their union campaigns secret prior to filing a petition. Once an election petition has been filed, the employer will be faced with the Hobson's choice of agreeing to an election in a voting unit that it does not believe is appropriate under governing law or consuming valuable resources and limited campaign time litigating those issues before career civil servants whose orders are to hold elections now and decide who should have voted later. What is an employer to do if this proposed rule is adopted?
The only real alternative for an employer who has any concern about unionization will be to attempt to "inoculate" employees before a union ever tries to organize. This would be done by educating employees now about unions (something many employers have been reluctant to do for fear that saying the word "union" will cause some employees to consider that option even though they might never have done so otherwise). Topics to discuss with employees would include how unions try to organize in secret and how little debate there would be if management never knew that a union was soliciting employees. Other topics would include the costs and disadvantages of letting a union come between employees and management; how unions are organized and operate; where unions get their money and how they spend it; how unions enforce their rules against their members; how collective bargaining really works; what happens during a strike; and the other things that can happened when collective bargaining does not work. Ideally, an educated workforce would, on their own initiative, report to management any nascent union-organizing attempts long before a petition is filed.
There remains some possibility that this new rule will not be adopted. As noted above, Chairman Liebman's term expires on August 27, 2011 (before expiration of the comment reply period, which is noted above); one seat on the five-Member Board is currently vacant; and the term of Democratic Member Craig Becker, a recess appointee who was never confirmed by the Senate, expires on December 31, 2011. If this proposed rule is not finally adopted before Becker's term expires, there will be two Members left (one Democratic and one Republican), one short of the quorum needed for the Board to take action.