On June 22, the National Labor Relations Board published in the Federal Register proposed amendments to its procedures for representation elections. While the Board’s stated intent is to “reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing,” the impact on employers is clear: once a representation petition is filed, employers will have dramatically less time to communicate with employees about the election. This is sure to result in significantly increased union election victories.
The Board will engage in rulemaking to achieve these changes and will offer the public the opportunity to comment through a public hearing scheduled for July 18 and, possibly, July 19, as well as through a 60-day period for written comments. These deadlines suggest the Board is fast-tracking the public comment period and it is likely a final rule will be issued expeditiously.
Set forth below is a comparison of the current procedures in representation cases. The changes proposed by the Board, which are numerous and significant, include:
- No pre-election challenge of voter eligibility if less than 20 percent of the bargaining unit is at issue;
- No pre-election appeal to NLRB of Regional Director rulings;
- Pre-election hearings (which will become rarer) would begin no more than seven days after the petition is filed (absent “special circumstances”) and post-election hearings would begin no more than 14 days after the ballots are counted (with some exceptions);
- The list of eligible voters (name, work location, shift and job classification) would be provided to the union no later than the opening of the pre-election hearing (versus after an election has been directed);
- The Board would likely reduce the number of regional director decisions it reviews; and
- The final list of eligible voters would be given to the union sooner and in an electronic format, including phone numbers and email addresses.
Click here to view table.
Unions must be thrilled — quicker elections will mean more union election victories. Employers should prepare themselves for a “brave new world” in which many, if not all, of the amendments become reality — and soon. Employers should also consider expressing their views to the Labor Board during the public comment period.