Labor and Employee Relations
What Employers Should Do Now in Response to Proposed Changes in NLRB Election Regulations
On February 6, 2014, the National Labor Relations Board (NLRB) re-issued union sponsored proposed amendments to the rules and regulations governing union elections. The "new" rules are identical to those proposed in 2011 and invalidated by the courts on procedural grounds. As before, the proposed rules have the potential to affect every private employer in the U.S. by shortening the time between a union's filing of an election petition and the election - making it easier for unions to win.
Since union organizing campaigns frequently begin in secret and can be conducted for months in advance of an employer’s knowledge, the proposed amendments would make it difficult for an employer to assess the situation and to explain its position to employees. NLRB Members Philip Miscimarra and Harry Johnson voiced this concern in a dissent from the issuance of the proposed rule, noting that the rules “would improperly shorten the time needed for employees to understand relevant issues, compelling them to vote now, understand later.”
In the time remaining, employers should prepare for the possibility of “quickie” elections and develop an effective communications plan and materials to respond to union organizing and/or NLRB supervised union election in advance.
Employers Face Expedited Union Elections Under New NLRB Proposed Rule
The NLRB’s proposed rule would dramatically expedite union elections, shortening the period from representation petition to election from the current standard of 38 days to 10 to 25 days, and curtail employer rights in election proceedings. Among other changes, the proposed rule would:
Require the scheduling of the hearing on the appropriateness of the bargaining unit within seven days of the petition filing (now usually 14 days);
Require an employer to file a “Statement of Position” in advance of the hearing date setting forth the employer’s position on numerous legal issues. Any issues not raised in the statement would be deemed waived;
Require the employer, by the hearing date, to prepare a preliminary voter list containing employee names, work locations, shifts and classification, and to identify any issues regarding the composition of the proposed bargaining unit, day, time and place of the election, and other election-related matters;
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What Employers Should Do Now in Response to Proposed Changes in NLRB Election Regulations March 2014
Preclude a pre-election challenge of voter eligibility if less than 20% of the voters in the bargaining unit are at issue;
Consolidate all election-related litigation or objections to campaign conduct into a single process following the election;
Make the review of any post-election decision totally discretionary with the NLRB, rather than mandatory; and
Require the employer within 2 work days (now 7 days) of the direction of election to provide the union with the name, home address, telephone number, and email address of all eligible voters (currently only employees' full names and residence addresses must be provided).
Practical Implications for Employers
In view of the proposed rule, employers should:
Assess the vulnerability of possible voting (bargaining) units to union organizing activity;
Train managers and supervisors to recognize early signs of union organizing activity and to understand what can and can't be said and done before and during a union election campaign;
Develop a response (i.e., campaign strategy and materials) to union organizing and/or NLRB supervised union election in advance, which can be updated as facts and circumstances change within the work environment;
Establish employee relations programs and clear channels for employees to communicate with management; and
Review policies and procedures for compliance with the National Labor Relations Act. If the NLRB determines that an employer policy interferes with employee rights under the NLRA, it can be used to set aside an election won by the employer (even if the policy is not enforced).
The rules are not yet final. Comments on the proposed rules must be received by the NLRB by April 7, 2014 and may be submitted electronically at Regulations.gov or via mail.
Litigation is likely to follow any final rules. The U.S. Chamber of Commerce, National Association of Manufacturers and other groups already have announced their intent to challenge the proposed rule. Regardless, employers should take the above proactive steps to maintain positive employee relations and minimize labor risks.
We will continue to monitor these developments. In the meantime, if you have questions about the new proposed rules and their implications for your workplace, please contact your Baker & McKenzie attorney or any of those in our Labor and Employee Relations practice.
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