On Feb. 5, 2014, the National Labor Relations Board (NLRB) reissued a controversial set of proposed regulations that represent the most comprehensive restructuring of the rules for elections and representation cases in recent memory. These proposed regulations are identical to those issued by the NLRB in June 2011, which faced strident opposition from business groups during the hearing and comment period. After the NLRB adopted an amended version of these rules, the U.S. Chamber of Commerce, along with others, filed suit. The D.C. Circuit Court of Appeals ultimately invalidated the adoption of the amended rules based on a procedural irregularity, and the NLRB withdrew them. However, the reissuing of the regulations does not come as a surprise, particularly after the NLRB identified them in December as the sole item on its 2014 regulatory agenda.
While the NLRB’s stated purpose of these regulations is to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation,” the practical effect for employers will be shortened campaigns, faster elections, and loss of rights to appeal decisions. These regulations, coupled with the U.S. Department of Labor’s proposed “persuader” rules and the Specialty Healthcare decision, may significantly undermine employers’ efforts to respond to unions and their propaganda.
Highlights of the NLRB’s Proposed Reforms
While the NLRB will likely amend the proposed rules after the comment period ends, the current iteration of the rules contains comprehensive changes to the procedure after a petition for election is filed. Most notably, the proposed rules:
- Permit electronic filing and transmission of election petitions and other documents;
- Defer litigation and appeals of most voter eligibility issues until after the election;
- Require employers to provide voter lists in electronic form, including telephone numbers and email addresses;
- Consolidate pre- and post-election matters into one post-election appeal; and
- Shorten the time period for processing petitions and setting elections.
The NLRB’s supposed modernizing and streamlining of the rules will likely serve only to hamper the already-limited rights of employers during union campaigns and elections. For example:
- The truncated time for elections after the filing of a petition limits employers’ ability to contradict effectively any union propaganda. Thus, employees’ decisions in any election will be based almost exclusively on the union’s arguments.
- The deferral of litigation and appeals of voter eligibility creates a number of issues, not the least of which is that employers will be unable to resolve who is a supervisor for the purposes of campaigning or to stop elections in units that are unrelated from an operations perspective.
- The post-election consolidation of appeals will prevent employers from addressing timely challenges and countering the organizing campaign before a union is elected.
The NLRB is currently accepting comments on these proposed regulations until April 7, 2014, with reply comments due by April 14. The Board also plans to hold a hearing on the proposed regulations during the week of April 7.