On July 18-19, 2011, the National Labor Relations Board ("NLRB" or "the Board") held a public hearing on its radical proposed changes to the current election handling procedures. The proposed changes ("Proposal") are set forth in a notice of proposed rulemaking, dated June 22, 2011. (Go here to see the Proposal.) The current election handling procedures have been in place for decades, and in recent years, unions have won more than two-thirds of all elections held under these procedures. Indeed, unions have won more than half of all elections for 14 straight years. Despite this, the Proposal would, among other things, dramatically accelerate the timing of Board-conducted elections.

Jay P. Krupin, Chair of EpsteinBeckerGreen's National Labor Steering Committee, testified before the Board regarding the tremendous impact such a change would have on a small business owner's rights to communicate with his or her employees. (Go here to access a video of Mr. Krupin's testimony.) Mr. Krupin noted that the Proposal "eats out the substance of the secret ballot," and that "the right of free speech is meaningless if there is no time granted to speak."

Mr. Krupin challenged a statement on the NLRB's website that "[t]he proposed amendments are designed to fix flaws in the Board's current procedures that build in unnecessary delays," asserting that "[o]nly in the mind of a union partisan can the few short weeks between a petition and the election be referred to as an ‘unnecessary delay.' The proposed rule leaves no doubt which ‘side' [the NLRB] supports, and it is not on the side of a neutral, balanced, and fair approach which protects and holds sacred the employees' right to choose."

According to the NLRB's 2010 Performance and Accountability Report, currently, 95 percent of elections are held within 56 days of the filing of a petition. Under the Proposal, this could drop to as little as 10-21 days. The Proposal would also restrict an employer's ability to assess the appropriate unit and effectively litigate the issues, drastically increase the burden on an employer to produce information valuable to the union for organizing, defer important voter-eligibility issues until after the election is held, and eliminate an employer's ability to seek Board review of a Regional Director's election rulings.

As you can see, the Proposal reads like the vows taken at an arranged marriage. As Mr. Krupin noted in his testimony, for small employers, such one-sided procedures make an election an "away game." Rather than encouraging debate and questions, the Proposal's time frame resembles a "shotgun wedding," under which less than fully informed workers are rushed into a relationship that will have a lasting and real impact on their workplace and rights. Having an election in the midst of the "fire drill" atmosphere created by these unreasonable timelines eviscerates an employee's opportunity to become fully informed and makes a mockery of the secret ballot election.

The drastic reduction in the election time frame is particularly worrisome because union organizing most often occurs "under the radar." Frequently, union organizers have campaigned for several months leading up to the union's filing of a petition, and have done so without the employer's knowledge. Indeed, most unions will not even call for an election until at least 65-70 percent of the targeted workforce has signed "authorization cards" turning over to the union the employee's right to negotiate his or her wages, benefits, and terms and conditions of employment. Thus, by the time the union files its petition, the union already has approximately two-thirds of the voters in its corner, as it has had free rein to mislead employees, disseminate propaganda, and make promises it cannot keep, all without challenge or dissent.

The current usual campaign period of 38-42 days generally provides an acceptable opportunity for many employers to combat the union's propaganda and to share their own views of unions with their employees. However, if the Proposal is implemented, employers will lack sufficient time to rebut the union's propaganda and promises. Robbed of the chance to speak on the issues of most importance to their employees, many employers will have no alternative but to stand by and watch as the "fire drill" election succeeds in its purpose – increasing union membership rolls.

What Employers Should Do Now

Employers should be proactive in the face of this threat. We recommend three immediate steps:

  1. Review and update labor relations strategies to counter these radical changes. Without a doubt, if and when these changes are put in place, an employer confronted with an election petition will stand little chance of prevailing. Supervisory and management union-avoidance training is a simple, yet effective, step every employer should take now.
  2. Prepare now for the sure-to-come union organizing. As noted above, once a petition is filed on an unsuspecting employer, it will be too late. A basic "toolbox" campaign, under which an employer has already considered the potential threats and issues, and prepared the first stages of a positive, practical, and proactive counter-strategy and rapid response to be deployed at the first signs of union organizing, could prove invaluable.
  3. Get involved on every level to combat the Proposal – whether through business or trade associations, legislative initiatives, or lobbying efforts. Employers and others concerned by the Proposal may submit comments to the Board through August 22, 2011, and replies until September 6, 2011.