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Legal Updates

NLRB Adopts Significant Changes To Union Election Procedures In Final Rule To Take Effect On April 30, 2012

On December 22, 2011, the National Labor Relations Board (the “Board” or “NLRB”) issued a Final Rule substantially altering established union election procedures.  The Final Rule will become effective on April 30, 2012.

The new election procedures will enable NLRB hearing officers and regional directors to put union elections on a much faster track.  This will disadvantage employers by according them little time to respond to union propaganda and to present their positions on unionization and relevant workplace issues to their employees.

Advance planning will be the most effective, and perhaps the only, way for employers to prevail in union elections under the new procedures.  Our planning recommendations are set forth below, following a summary of the new procedures and the circumstances leading to the Board’s vote to adopt them.

The New Election Procedures

The Board’s new election procedures will:

  • Empower NLRB hearing officers to exclude from pre-election hearings challenges about whether employees are in the bargaining unit or eligible to vote;
  • Empower NLRB hearing officers to decide whether the parties will be permitted to file briefs at the conclusion of pre-election hearings (currently, parties may file such briefs as a matter of right);
  • Eliminate an employer’s right to seek Board review of the regional director’s pre-election rulings – and allow post-election review of only those issues “that have not been rendered moot by the election”;
  • Permit an employer to obtain “special permission” to appeal the regional director’s pre-election rulings only upon a showing of “extraordinary circumstances”;
  • Allow elections to be scheduled within 25 days after a notice directing an election (by deleting language in the Board’s current statement of procedure that currently prevents regional directors from scheduling balloting within 25 days of directing an election); and
  • Make Board review discretionary with respect to certain post-election disputes, e.g., disputes concerning alleged misconduct during the balloting.

Deferral Of More Controversial Changes

In the Final Rule, the Board adopts only a portion of a larger set of changes that it proposed in June.  The remainder of the proposed changes are even more controversial – and have been deferred for possible later consideration.  The deferred portion of the Board’s proposed rules would, among other things:

  • Permit election petitions to be filed electronically;
  • Require a pre-election hearing to be scheduled no later than seven days after service of a notice of hearing;
  • Reduce from seven days to two days the employer’s time period for providing a list of eligible voters to the union after the election petition has been granted; and
  • Require employees’ phone numbers and e-mail addresses to be included in the voter lists.

These proposed changes to the election rules were deferred after Republican Board Member Brian Hayes threatened to resign as a way of depriving the Board of the three-member quorum needed to vote on any of the proposed rules.  In this regard, the five-seat Board consisted of only Hayes and Democrats Craig Becker and Mark Gaston Pearce at the time.

Since the deferral of these controversial additional changes, Member Becker’s recess appointment expired, and President Obama appointed (again, via recess appointment) three new Board members, bringing the Board to its full complement of five.  As the Board now consists of three Democratic and two Republican members, it is anticipated that the controversial proposed changes will at some point be revived.

Recommendations For Employers

As the Final Rule will give unions a decided advantage in representation elections – and is slated to go into effect on April 30, 2012 – employers should act now to reduce the risk of successful union organizing campaigns.  At a minimum, employers should:

  • Adopt and enforce valid policies that limit when employees may solicit and distribute literature in the workplace and that prevent unauthorized visitors from gaining access to the premises.  Such policies should always be reviewed by labor counsel, as the rules governing them are complex;
  • Be sensitive to issues that are of concern to employees and attempt to remedy legitimate complaints.  A proactive approach on such matters can help to alleviate the dissatisfaction among employees that often spawns union organizing campaigns;
  • Train supervisors, managers, and human resources personnel in how to recognize and respond appropriately to possible union organizing activity; and
  • Develop a plan for communicating the employer’s position on unionization and related issues both internally and externally.

Significantly, enacting some of these recommendations after a union organizing campaign is under way may be viewed as unlawful retaliation against union activity and, in turn, support an unfair labor practice charge against the employer.  Accordingly, employers that wish to remain union-free should act now to implement these protections.

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Please do not hesitate to contact us if you have questions about the NLRB’s new election procedures, or if we can assist with any other labor-related matter.