In the wake of the legislative defeat of the Employee Free Choice Act ("EFCA") in Congress, the National Labor Relations Board ("NLRB"), is attempting to rewrite its election regulations in an attempt to produce the same result intended by the proponents of EFCA - make America more unionized.  See, 76 Federal Register 36812 (June 22, 2011).  The NLRB's assault on employee choice and, arguably, its own statute is embodied in 146 pages of proposed regulations that effectively eliminate the employer from the election process.  The public has but 60 days to comment on the most sweeping regulatory change to the current process, which has been operating equitably and effectively for decades.

Most news reports regarding the proposed regulations have focused on the planned reduction in the time between the filing of an election petition and the election itself.  The NLRB intends to cut the current 42-day time target to 15-21 days.  While this change is very significant, there are many more changes that will irrevocably provide an advantage to unions in elections and prevent employees from receiving factual information regarding unionization.  Failure to abide by any of these new guidelines will be grounds to invalidate a union loss and will result in a new election.  Here are some of the lowlights:

  • Employers will be required to manually and electronically post the initial notice received with the petition from the NLRB continuously until election notices are posted.  This notice is currently voluntary and need not be "e-posted."
  • Employers will be required to provide to the union the names, work locations, shifts, and job classifications of all employees in the petitioned-for unit (voting group) within seven days of the petition.  Currently, the employer is not required to provide even employee names to the union until the eligibility list is provided to the NLRB, shortly before the election.
  • Employers will be required to file a "Statement of Position" within seven days of the petition.  The Statement of Position must contain every argument the employer intends to raise in defense of the petition.  Failure to raise any issue in the Statement will result in a complete waiver of that argument.  The waiver may apply when the employer does not discover the issue until later in the election process.
  • Employers will no longer be permitted to proceed to a pre-election hearing on most questions of voter eligibility.  In other words, the NLRB will now permit non-employees (supervisors, independent contractors, etc.) to vote in elections in most cases.  This change appears to violate Section 9 of the National Labor Relations Act, which provides that only employees may select a bargaining representative. 
  • Employers will be prohibited from raising any issues or defenses if the Statement of Position is not timely filed.  In addition, an employer's failure to identify an alternative to the voting unit described in the petition will be taken as an admission that the union's proposed unit is appropriate.
  • All pre-election appeals to the NLRB are eliminated by the proposed regulations. 
  • Voter eligibility (a/k/a "Excelsior") lists must be produced in an electronic format directly to the union within two days of an election agreement or direction of election.  The eligibility list must include employees' phone numbers, work locations, shifts, job classifications, and "available email addresses".  Currently, only an alphabetized list of eligible voters with home addresses is required. 

As indicated above, the proposed regulations are designed to conduct most elections within about 15 days.  Given this time frame, employers will have virtually no opportunity to speak on the question of union representation.  This effective removal of Section 8(c) of the Act (which preserves the employer's right to speak to its employees) could result in employees hearing only from union representatives - who are not required by the NLRA to be truthful during election campaigns.

The NLRB's design to mislead workers into third-party representation violates the guiding principle of employee choice set forth in Section 7 of the Act. 

The current election procedures are not unfair, outmoded, or ineffective.  The NLRB's  claimed rationales for the new regulations are simply false.  By proposing such regulations, the NLRB has endangered its history as a neutral federal agency as well as its credibility.

If these regulations take effect, employers will not be able to wait for an election petition to advise their employees regarding union representation.  This education should be presented now, particularly in industries such as health care, hospitality, and retail sales, where unionization efforts could benefit the most from the new regulations.  Once an election petition is filed, employers should immediately seek advice regarding how to avoid waiving their defenses early in the NLRB process. 

Employers should consider submitting comments to the NLRB as soon as possible and contacting Congress in an attempt to stop these biased and arguably unlawful proposed regulations.