On June 21, the National Labor Relations Board (NLRB or Board), approved and issued proposed rules, by a 3-1 decision along party lines, designed to decrease significantly the period of time that an employer will have to educate and campaign to their employees prior to a union election. This is the first instance since the mid-1980s that the NLRB has used its rulemaking powers and the proposed rules mark the most significant changes to the election procedure in nearly 50 years.
Currently, most union elections take place within 40-50 days after a union gathers enough employee signatures to file a petition with the NLRB seeking an election. During that time, the NLRB is required to investigate the petition to determine whether a union election should be held and, if so, which groups of employees should be included in the voting unit. This time period also provides an opportunity for employers to educate and campaign to their employees about the prospects of unionization. In most union organizing drives, this is the only opportunity available to an employer to communicate with its employees about unionization, whereas the union has typically been soliciting employee support on a clandestine basis for an extended period of time prior to the signing of the petition. Under the current election system, unions have won 67.6 percent of the elections conducted by the NLRB in 2010 and 68.7 percent of those conducted in 2009.
The NLRB's proposed rules do not establish a set timeline for conducting an election; however they will significantly expedite an election by instituting the following changes:
- Allowing for electronic filing of petition;
- Requiring unit-determination hearings to begin within seven days after a petition is filed;
- Postponing litigation of certain unit issues and appeals until after the election; and
- Reducing the time for an employer to provide an electronic list of eligible voters to the Board and the union from seven to two days.
Indeed, NLRB Member Brian Hayes, who voted against the proposal, estimated that employers will be faced with "quickie elections" of 10 to 21 days after the filing of a petition. By contrast, Chairwoman Wilma Liebman, claims the new rules are simpler and clearer and will limit what she characterizes as unnecessary delays and wasteful litigation. Predictably, immediate reaction to the rules from organized labor was positive, while business groups voiced opposition.
The NLRB also announced an expedited 75-day process to accept and review public comments and replies to the proposed rules before making a decision on whether the rules should become final. The comment period runs through August 21 and a hearing has been scheduled for July 18 and 19, 2011, in Washington, D.C.
It has been predicted for some time that the Obama administration would attempt to placate supporters within organized labor through agency action after failing to obtain passage in Congress of the "Employee Free Choice Act" ("EFCA"), which would have allowed the federal government to certify unions as bargaining agents for employees without an election. The NLRB's proposed rules are just the latest example of such agency action. For instance, last year, the National Mediation Board, which oversees labor relations in the rail and airline industries under the Railway Labor Act, adopted a rule that made it easier for unions to win elections in those industries by requiring the union to obtain a majority of votes cast, as opposed to those eligible to vote. Meanwhile, the Department of Labor (DOL) recently issued a proposed rule expanding the financial reporting obligations of consultants and lawyers who assist employers in defending union organizing campaigns, which, if promulgated, may require the disclosure to the government of financial information by the client and the consultant/lawyer with regard to "persuader" activities. The comment period for the DOL's proposed rule runs through August 20, 2011.
The NLRB's proposed rules will make it much easier for labor unions to organize employee groups by eliminating or postponing pre-election eligibility procedures and proceeding to an election without determining which employees should be eligible to vote or whether the election is appropriate given other legal concerns. The result will be that organized labor wins more elections because the employer's ability to talk to its employees about the pros and cons of unionization will be severly constrained. In essence, the new regulations would deprive employees of a critical information source in determining whether they desire union representation.
In light of these changes, it is important for employers to express their views on the proposed rules to the Board and their Congressional representatives, who ultimately have the power to overturn regulations through legislative action. In addition, assuming the regulations become final, employers will need to be more proactive in dealing with potential labor relations issues before they develop into organizing activity.