Yesterday, the National Labor Relations Board (“NLRB”)
announced that it is reviving a proposed rule to change its procedures governing
union-representation cases.
The current process for a union election requires at least
30 percent of a company’s employees to file a petition with the NLRB showing
interest in forming a union. The
employer and union then form an agreement for the election procedures, or the
NLRB Regional Director orders the election and establishes conditions for the
process. Thereafter, the election is
held typically within 30 days of the Director’s order, but the election may be
postponed if either the employer or the union files a charge alleging the other
party engaged in conduct that would interfere with the employee’s free choice
in the election.
The NLRB intends the proposed amendments to serve as a
mechanism for streamlining the union-election process and reducing
election-related litigation. Under the
amended procedure, employers would have to delay legal challenges to the voting
process, provide the union with its employees’ e-mail addresses and telephone
numbers, and allow electronic filing of election materials. The parties would also be under tighter
deadlines for pre-election procedures.
Legal experts, including former NLRB Member Brian Hayes,
opine that the election time period – from the date when workers file the
petition to the actual voting date – would be significantly shortened as a
result of these changes, thus giving rise to the terms “ambush” and “quickie”
elections. That shortened time period
could have a significant impact on employers, as it would give them less time
to inform their employees of the disadvantages of belonging to a union and to
seek to persuade them to remain non-unionized.
The proposed changes resurrect the identical amendments
the NLRB sought to implement in June 2011.
At that time, the NLRB published a notice of proposed rulemaking (“NPRM”),
considered the input provided in response to the NPRM, and adopted a final
rule. Thereafter, in 2012, the District
Court for the District of Columbia held the final rule invalid, indicating that
it had been adopted without the requisite valid quorum. Although the NLRB appealed the ruling, it
later entered into a joint stipulation dismissing the appeal on December 9,
2013.
In connection with the current NPRM, the NLRB invites the
public to comment on the proposed changes by April 7, 2014. The NLRB will hold a public hearing to
discuss the proposed amendments during that week. Employers should stay tuned for new
developments as the proposed rule, if adopted, will require employers to make
significant changes to the way in which they approach elections. The labor and employment attorneys at Connell
Foley welcome the opportunity to counsel employers regarding these NLRB changes
and any other NLRB matter.
