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NLRB Reissues Rules Expediting Union Elections

Labor & Employment Law Update David B. Kern

The National Labor Relations Board (“Board” or “NLRB”) has reissued its proposed amendments to the rules governing union representation elections. These rules were first announced on December 21, 2011, and were to go into effect on April 30, 2012. Those amendments were challenged, blocked in federal court and never went into effect.

By a three to two vote, the NLRB has now reissued the proposed amendments. NLRB Chairman Mark Gaston Pearce has asserted that the amendments will “modernize the representation case process.” However, dissenting members Philip Miscimarra and Gary Johnson describe the changes as “contrary to the Act and ill-advised.” They point out that election delays occur only in “a discrete minority of cases,” and that the amendments will significantly diminish employers’ free speech rights to communicate with employees about the election.

As we discussed in our December 2011 Update, the proposed changes would modify NLRB election procedures in a number of important ways:

  1. Pre-election hearings will be held only to determine whether a question concerning union representation exists that should be resolved in a secret ballot election. Disputes about voter eligibility and unit scope will be determined after the election, instead of before it, if at all.
  2. Hearing officers will have authority to significantly limit pre-election hearing evidence, and to close the hearing even if the eligibility of up to 20 percent of the bargaining unit members is still in doubt.
  3. Post-hearing briefs will be permitted at the hearing officer’s discretion rather than as a matter of right.
  4. Parties may seek NLRB review of a Regional Director’s pre-election rulings after the election, instead of before.
  5. Regional Directors will no longer be prohibited from scheduling the election less than 25 days after directing an election, and no time period is prescribed at all.

The overall effect of these changes will be much quicker elections, which will reduce the amount of time the employer has to communicate its position to employees before they vote. Therefore, many employees may be compelled to vote without all the necessary facts unless employers become more proactive. Under the current rules, many contested representation issues, including unit scope, supervisory status, and other vote eligibility questions are resolved in hearings, briefing, and appeals before the election takes place. Currently, many elections with contested issues are held six weeks or more after the election petition is filed.

Under the amended rule, questions concerning whether the union has the required 30 percent showing of interest — normally based on authorization cards — to force an election will still be heard before the election. Most other issues will be deferred until after the election, thereby shortening the process considerably. Even then, the amended rule will permit the NLRB to refuse to hear those issues. Thus, under the amendments it will be possible for Regional Directors to direct an election as soon as two weeks after the petition is filed, and the employer will have no recourse.

Since an employer often learns of the organizing effort only when the petition is filed, the time between the filing and the election can be the crucial period during which the employer may lawfully communicate facts about representation and the collective bargaining process to employees. In contrast, unions may campaign and propagandize for months without employer knowledge or involvement before filing a petition for an election.

The Board must first solicit comments before finalizing these rule changes. Comments may be filed until April 7, 2014. A public hearing will then be held by the Board. Since employers will have far less time to communicate with their employees if and when these amendments take effect, they should consider educating employees now about the facts of union representation and the collective bargaining process. As is always the case, employers should also listen to employee concerns and address them, where possible, in advance of any organizing activity. Finally, supervisors should be trained to recognize organizing efforts and should fully understand the “do’s and don’ts” applicable to their conduct.

If you have any questions about this alert, please contact Dave Kern at (414) 277-5653 / [email protected], Jon Pettibone at (602) 230-5572 / [email protected], Dawn Valdivia at (602) 229-5291 / [email protected], Fred Gants at (608) 283-2618 / [email protected], John Klages at (312) 715-5060 / [email protected], or your Quarles & Brady LLP attorney.

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