What Cannot Be Done By Law, Do By Regulation: The National Labor Relations Board and Union Elections | Compli.com

What Cannot Be Done By Law, Do By Regulation: The National Labor Relations Board and Union Elections

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What Cannot Be Done By Law, Do By Regulation: The National Labor Relations Board and Union Elections

Bressler, Amery & Ross Labor and Employment Law Alert

Contributing Authors: Jed L. Marcus, Andree Peart Laney, Emily J. Wexler

July 2011

The National Labor Relations Board (“NLRB”) has published, in the Federal Register, a Notice of Proposed Rule Making to amend its existing rules and regulations regarding representation elections. These amendments, if enacted, would dramatically shorten the period between the filing of a representation petition and the election, and would limit the opportunities for Board review of certification determinations made by the Regional Offices. These proposed rules attempt to limit employer participation in representation elections and to achieve, via rulemaking, some of the goals of the now-defunct Employee Free Choice Act. The proposed rules would alter current mechanisms for hearings, the manner of filing petitions, and the elections themselves. Here is a quick review:

Changes to Hearing Process.

The Board’s current policy encourages the NLRB to hold representation elections within 45 days following the filing of a representation petition. Under the proposed amendments, however, that period would be dramatically curtailed. The Board would defer most voting/bargaining unit issues until after the election and would eliminate the right of parties to request review of a Regional Director’s decision before an election is held.

Under the proposed rules, a pre-election hearing would have to begin no more than seven days following the service of notice of the representation petition. Before the hearing is to begin, the employer would be required to state its position on any election-related issues that it plans to raise at the hearing. Those issues could include the Board’s jurisdiction, the appropriateness of the proposed bargaining unit, and the type, date, and location of the election. The possibility exists that any issue not raised would not be considered later in an appeal to the Board. Following the employer’s presentation, the union would respond to the employer’s positions and, after the hearing, an ALJ would identify any disagreements. The ALJ would accept evidence only if a genuine issue of material fact existed regarding those issues.

Under the proposed rules, there would be no pre-election litigation of the disputes, unless the disputed issue affects at least 20 percent of the proposed bargaining unit. Even in instances where unit issues are litigated before the election, the proposed new rules would not allow parties to request Board review prior to the election. The Board would have the discretion not to review, as opposed to the mandatory review under the current rules. The Board believes that these steps would consolidate all election-related appeals into a single post-election appeals process, thus eliminating the delay in holding elections that the Board blames on “the possibility of pre-election appeals.”

Pre-election Requirements.

After the Regional Director issues a direction of election, the proposed rules give employers only two days, not the current seven, to provide the union with a final list of eligible voters. Such lists must also contain both phone numbers and email addresses, not just names and addresses, as the current rules allow.

Filing Changes.

The proposed rules would also expand use of modern communication technologies. Petitioners could, for the first time, file election
petitions electronically. The Board itself would be able to give notice of the election to employees, if their email addresses are available.

The Bottom Line.

It appears that the NLRB is working very hard to stack the deck against employers by making it almost impossible for them to give their opinions to employees about unions. These rules are not yet in effect, but employers would be wise to start putting together pro-active policies in anticipation of expedited elections in the future.

Union avoidance always begins with a careful look at policies, procedures, compensation, and treatment. Now is the time to review and revise solicitation and distribution policies. If none exist, it is time to acquire one, to do everything that will assure fair treatment. Supervisory training is very important. Supervisors are the first line of defense. They must learn what to look for and be ready to report any incidents to the employer immediately. In short, these proposed rules will usher in the 24/7/365 campaign. Get ready for it.
 

The information contained in this Client Alert is for general informational purposes only and is neither presented or intended to constitute legal advice or a legal opinion as to any particular matter. The reader should not act on the basis of any information contained herein without consulting first with his or her legal or other professional advisor with respect to the advisability of any specific course of action and the applicable law.

The views presented herein reflect the views of the individual author(s). They do not necessarily reflect the views of Bressler, Amery & Ross, P.C. or any of its other attorneys or clients.
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