In recent years, efforts to revise federal labor law in ways that would favor unions have focused on the highly controversial Employee Free Choice Act (EFCA). That legislation would have eliminated an employer's right to insist on a secret-ballot election to establish union representation status and required instead that an employer recognize a union as its employees’ representative based solely on the union's obtaining a majority of signed authorization cards. EFCA also would have subjected collective bargaining efforts to mediation and binding arbitration in certain situations and increased penalties against employers for labor violations – all measures designed to facilitate unionization. Although EFCA ultimately failed to garner the Senate votes it needed to survive a Republican filibuster, the National Labor Relations Board (NLRB) is now seeking to accomplish EFCA’s fundamental goals outside the legislative process. On June 22, 2011, the NLRB proposed administrative rulemaking under the National Labor Relations Act that, if adopted, would fundamentally change the landscape surrounding union representation elections.

The NLRB’s Proposed Rulemaking on Pre- and Post- Election Procedures

With only minor changes (primarily to reflect technological advancements), the NLRB has for decades followed the same basic procedures, set forth in two sets of regulations, for processing union representation petitions and conducting secret-ballot elections. The proposed changes would consolidate these regulations and substantially amend the well-established procedures for determining union representation status. While the proposed regulations would not eliminate an employer's right to insist on a secret-ballot election, they seek to "streamline pre- and post-election procedures" in ways that will significantly shorten the period between a union’s petition for an election and the election itself. The proposed regulations would allow unions to file representation petitions electronically, a practice that currently is not permitted. The NLRB Regional Director would issue an “Initial Notice to Employees of Election” immediately after the filing of the petition, and a pre-election hearing would be set within seven days of that notice. In an attempt to prevent election delays, the parties would be required to raise all issues other than voter-eligibility issues at the pre-election hearing. Voter-eligibility issues would be deferred until after the election, unless they concern twenty percent or more of the bargaining unit. To further prevent election delays, parties would also have to wait until after the election to request NLRB review of the Regional Director’s pre-election rulings. According to the NLRB, these rules seek to “eliminate unnecessary litigation concerning issues that may be and often are rendered moot by the election results . . . .”

The proposed regulations would also substantially amend the rules regarding the voter-eligibility list that an employer is required to prepare. The proposal would shorten the time for the production of this list from the current seven days to two days following the direction of election. Currently, the eligibility list must contain only the names and addresses of employees in the petitioned-for unit, but the proposed amendments would require the list to include employee telephone numbers, e-mail addresses, work locations, shifts, and classifications as well. Employers would be required to submit this information electronically to both the NLRB and the union.

The proposed rules are open for public comment until August 22, 2011. The NLRB will also hold an open meeting on July 18 to receive comments on these proposed amendments.

Practical Implications

While many of the proposed amendments appear facially neutral as between union and employer, their practical effect of shortening the election period would drastically impair employers’ ability to oppose unionization efforts. For the employer, the filing of an election petition customarily marks the beginning of the period in which the employer actively campaigns against union-organizing efforts; in fact, it is not uncommon for employers to first learn of union-organizing efforts when the petition is filed. The union, by contrast, has typically already obtained authorization cards from a heavy majority of employees – often seventy or eighty percent – by the time the petition is filed. The period between the petition and the election is thus critical to employers if they are to attempt to get their message out to employees and win the support of a majority of the employees who vote on union representation.

Over the last decade, this election period has typically ranged from five to eight weeks. The proposed rules seek to shorten that period to only two or three weeks in many cases, according to the dissenting comments filed by NLRB member Brian Hayes. By effectively shortening the election period, as well as by facilitating unions’ ability to communicate with employees via telephone and e-mail, these proposed changes would greatly impair employers’ ability to mount a successful campaign to educate workers about the realities of union representation and counter any inaccurate or misleading claims made by unions.

If the NLRB’s proposed regulations are adopted, employers will no longer have the luxury of waiting until a petition is filed before forming a strategy for responding to union-organizing activity. In anticipation of these or similar regulations, employers opposed to unionization should consult a labor expert to identify and assess unionization vulnerabilities and to prepare a strategy for quickly responding to the first sign of union-organizing efforts. Training supervisors in advance of union-organizing activity will be crucial.

Employers should be aware that the use of labor consultants in a union-organizing campaign may also become subject to some new administrative rules in the near future. On June 21, 2011, the U.S. Department of Labor's Office of Labor-Management Standards proposed revisions to its rules interpreting the federal law requiring employers and labor-relations consultants (including attorneys) to file reports disclosing information about "persuader activities" – that is, activities undertaken by consultants to persuade employees about the exercise of their rights to unionize and bargain collectively. Under the current interpretation of the law, these reports are required only if the consultant has direct contact with employees. The proposed reinterpretation would require disclosure reports in certain situations when the consultant has no direct contact with employees, such as when the consultant plans an employer's campaign in response to a representation petition or provides the content for an employer's communications with employees aimed at persuading them to exercise their union-representation rights in a certain manner. The required reports (which could be accessed by the public) would include disclosure of the fees paid by an employer for these activities, thus giving unions additional ammunition to use against employers in an organizing campaign. The Department of Labor is accepting comments on the proposed reinterpretation of the disclosure requirements through August 22, 2011.

Employers concerned about the impact that these proposed changes would have on the business community should consider submitting comments to the NLRB and the Department of Labor before the August 22 deadline.