E-Alerts

NLRB Votes To Make Significant Changes To Union Election Procedures

On November 30, 2011, the National Labor Relations Board (the “Board” or “NLRB”) approved, by a 2-1 vote, a resolution to adopt new rules substantially altering established union election procedures.  These new rules are expected to be finalized and adopted later this month.

The new election rules will enable NLRB hearing officers and regional directors to put union elections on a much faster track.  This will disadvantage employers by according employers 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 rules.  Our planning recommendations are set forth below, following a summary of the new rules and the circumstances leading to the Board’s vote to adopt them.

The New Election Rules

The Board’s new election rules 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 the hearing officer 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 less than 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.

Proposed Rule Changes Deferred By The Board

The new election rules to be adopted by the Board are only a portion of a larger set of changes proposed by the Board in June.  The remainder of the proposed rules 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.

Whether these highly controversial deferred rules will ultimately be voted on is unclear, as Craig Becker, one of the two Democratic Board members who proposed them, will cease serving on the Board at the end of this month, when his recess appointment ends.  At that time, the Board will be left with only two members, Republican Hayes and Democrat Mark Pearce, and will lack the quorum needed to promulgate rules or issue decisions.

Employers should carefully monitor the President’s future nominees to the Board, as they will determine the fate of the deferred election rules and other hot-button issues surrounding the Board’s recent activities.  (This, of course, assumes their confirmation by the Senate, which will be no guarantee in this dynamic political environment.)

Recommendations For Employers

As the new rules to be adopted by the Board will give unions a decided advantage in representation elections, 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.

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