NLRB Authorizes New Rules to Expedite Union Representation Elections

In June 2011, the National Labor Relations Board (Board) proposed eight amendments that would expedite the pre-election process in union representation cases and limit the post-election process in a manner that would significantly impede an employer's right to communicate with its employees and petition the government for redress. Republican Board member Brian Hayes opposed this proposal, stating "the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining."

At the time of this proposal, the Board had four members (three Democrats and one Republican). Since then, one Democratic Board member's term has expired and, at the end of this year, another Democratic Board member's recess appointment will expire. As the Board will have only two members after that point, it will lose its quorum and, thus, its ability to act.

Faced with the prospect of losing its quorum, on November 30, 2011 the Board voted 2-1 (along party lines) to pass a resolution to adopt six of the points in its prior rulemaking proposal. This commits the Board to draft a final rule that amends existing procedures by limiting the issues to be determined in the pre-election process and precluding pre-election review of regional office decisions in most cases. Specifically, the amendments would include: allowing hearing officers to limit the evidence introduced at pre-election hearings; allowing hearing officers to forego post-hearing briefs; consolidating appeals over pre-election issues and conduct during the election into one post-election procedure; and eliminating the practice of delaying elections while pre-election appeals are heard. These amendments are not in effect yet, as the resolution approved on November 30th still requires the Board to draft and formally approve by separate vote the final regulations.

While these more limited changes would be better for employers than the changes proposed in June, the consequences still could be significant. For one, it could significantly change the way supervisors are treated. In the past, if a union petitioned for an election in a unit that the employer contended included supervisors, that issue was addressed before the election. Under the new rule it is likely that those individuals' supervisory status will not be addressed before the election. This means an employer could end up having supervisory employees voting in the same election as non-supervisory employees, which could skew the results of the election and lead to supervisory taint issues.

Additionally, the changes will likely mean that elections are held in a much shorter timeframe if the employer and union do not come to agreement on issues concerning the scope of the voting unit. In the past, if the parties disagreed on this issue and the Region had to decide it, the election was scheduled between 25 to 30 days from the date of the decision. The resolution proposes eliminating that 25 day period, which means the election could be scheduled as soon as ten days after the decision.

When proposing this resolution, Board Chairman Democrat Pearce stated his intention was to improve the Board's procedures and prevent "needless litigation" from delaying employee votes. Citing the possibility that the Board may soon lose its ability to operate, Chairman Pearce proposed deferring consideration of the other previously proposed rules. He noted, however, that he was not abandoning those proposals, which include a requirement that hearings be held within seven days after notice, providing employee e-mail addresses and phone numbers to union organizers, and accelerating the time in which employers must provide unions with employee names and mailing addresses. Member Brian Hayes, the Board's only Republican, complained recently that the Board has been rushing to take action without providing him an adequate opportunity for dissent.

Unions will most likely be emboldened by the Board's action, and it may spark an increase in union organizing. To remain union free, it is increasingly important for employers to focus on positive-employee relations and supervisory training. If you have questions about these proposed rules, their impact on your business, or strategies to remain union free, please contact labor counsel.