It is only Wednesday, and yet the week has still been a tough one for employers concerned about union-related issues. On Monday, the U.S. Department of Labor proposed a new interpretation regarding persuader activity. Then yesterday, the NLRB announced a proposed rule that will significantly change, and likely accelerate, the union election process. The official publication of the NLRB’s proposal will take place today.
The Notice of Proposed Rulemaking (“Notice”) maintains that “the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation.” Through the proposed amendments, the NLRB intends to fix perceived flaws in the NLRB’s current election procedures that, according to Chairman Liebman (D), build in unnecessary delays, encourage wasteful litigation, reflect old-fashioned communication technologies, and allow haphazard case-processing.
Member Hayes (R) vigorously dissented (pdf) to the issuance of the Notice. Characterizing the proposed amendments as championing “a belief that employers should have little or no involvement in the resolution of questions concerning representation,” Hayes warned that the proposed changes would amount to a union-friendly “quickie election” option in which elections would be held in 10 to 21 days after the petition’s filing.
The Notice presently contains no specific deadline by which a union election must be held following the filing of an election petition. Yet, any shortened timeframe between a petition and an election may stymie employer efforts to convey the company’s perspective to employees. In contrast, the union has likely communicated with employees for some period of time before an election petition is even filed. This truncated employer messaging timeframe concerned Hayes, who wrote, “[m]ake no mistake, 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.”
According to an NLRB fact sheet, if adopted the proposed amendments would also:
· Standardize and accelerate timeframes for parties to resolve or litigate issues before and after elections.
· Require parties to identify issues and describe evidence soon after an election petition is filed, or forfeit the right to raise those issues later.
· Defer litigation of most voter eligibility issues until after the election.
· Require employers to provide a final voter list in electronic form much earlier than under current law, and require that list to include voters’ telephone numbers and email addresses when available.
· Consolidate all election-related appeals to the NLRB into a single post-election appeals process.
· Make NLRB review of post-election decisions discretionary rather than mandatory.
The NLRB’s proposed process changes could significantly impact an employer’s approach to a union election. Some of the changes and their effect, like the new eligibility list requirements, are straightforward. The impact of other changes may not be as immediately obvious. For example, deferring certain voter eligibility questions until after an election could introduce substantial uncertainty during the campaign process.
Finally, although the proposed regulations do not implement the precise types of changes EFCA would have brought, they clearly are designed to speed up the election process. Like EFCA’s card check, a quicker election process favors unions over employers. Thus, labor professionals will want to carefully review all of the proposed changes to determine how each may impact their organization’s own, unique circumstances. If an employer or industry/trade association wants to provide comments on the rules, they may do so at www.regulations.gov for the next 60 days.