NLRB Takes Another Run at "Quickie" Election Procedures

The National Labor Relations Board announced Wednesday that it is again proposing changes to its election procedures, ostensibly to “improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union.”

The proposed rules are referred to as “quickie” election procedures because they are meant to assist unions to quickly gain authorization to represent non-union employees before the employer can mount an effective counter-organizing campaign. Studies show that employees respond to such campaigns; opponents of the new rules argue that a radically shorter pre-election period denies employees the opportunity to consider all viewpoints and make informed decisions. 

If enacted, the new rules and regulations will:

• Shorten the average timeframe between the filing of a union-representation petition and the date of the election from 38-40 days to 14-21 days;
• Limit the parties’ opportunity to address pre-election and post-election disputes by consolidating all election-related appeals into a single post-election appeals process;
• Require regional directors to begin pre-election hearings seven days after the hearing notice is served, and begin post-election hearings 14 days after the tally of ballots;
• Allow for electronic filing and transmission of election petitions and other documents; and
• Require employers to provide the petitioning unit with telephone numbers and email addresses of eligible voters.

If the NLRB implements the proposed rules, an employer facing a union organizing campaign must be ready to react nimbly and effectively. That includes evaluating and, if necessary, challenging the appropriateness of the group of employees the union would represent. To do that, employers must be ready to describe its business to the NLRB, including how the various parts of its operation are functionally integrated; how and by whom employees are assigned tasks and supervised; and what skills and training employees need to fill the positions that would be affected, directly or indirectly. To be prepared, employers should have ready access to those policies that apply to all employees or groups of employees, current organization charts, job descriptions, and other documents that can help the employer tell its story to the NLRB.   

The NLRB acknowledges that the proposed rules are not “new,” and that they are “identical to the representation procedure changes first proposed in June of 2011.” Those June 2011 changes were invalidated after a federal district court held that the recess-appointed members of the board did not have authority to act; the NLRB eventually acquiesced to that ruling.

Although NLRB Chairman Mark Gaston Pearce stated that “[n]o final decisions have been made,” employers should be prepared for the rules implementation, which could happen as early as late-spring 2014. Many expect that a simple majority of Chairman Pearce joined by Members Kent Y. Hirozawa and Nancy Schiffer (board members with union backgrounds and Democratic Party support) will vote to approve these changes. The two board members with management backgrounds and Republican Party support (members Philip A. Miscimarra and Harry I. Johnson III) opposed the issuance of the rule-making notice and are expected to vote against the new rules.

The public may submit comments on the proposed changes until April 7, 2014 (more information can be found here), and the NLRB will hold a public hearing during the week of April 7, for the public to address the proposed changes and offer suggestions for improving current election procedures. The NLRB “will [also] review all of the comments filed in response to the [June 2011] proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered.” Employers, trade organizations, and others that opposed the June 2011 changes as giving an unfair advantage to unions can be expected to raise similar objections this time around.