NLRB Set to Rework Union-Election Rules
The National Labor Relations Board proposes significant amendments to its rules and regulations for conducting union representation elections. The amendments would change the current procedures the NLRB follows both before and after it conducts an election deciding the issue of whether employees want union representation in their workplace.
Perhaps the most important change is how the NLRB would handle questions about procedural issues related to the election. Currently, most challenges to an election’s procedural issues must be resolved before the election can take place. The NLRB’s amendments would allow the agency to settle many of these questions after an election takes place.
In practical terms, this creates an environment in which elections can happen very quickly. Business leaders expressed concern about this change of pace and about the loss of their ability to contest procedural issues before an election.
The NLRB said its goal for the proposed amendments is to streamline procedures, eliminate unnecessary litigation and allow parties to electronically file election petitions and other related documents.
But the decision caused concern within the NLRB itself. In his dissent, Boardmember Brian Hayes argues that amendments give organized labor a “quickie election option” and unfairly eliminate employer rights to contest an election.
If adopted, the proposed amendments would, in part:
- Require parties to identify issues and describe evidence soon after an election petition is filed, no later than the start of the hearing and prior to any other evidence being accepted.
- Defer litigation of most voter eligibility issues until after the election, eliminating pre-election review.
- Consolidate all election-related appeals to the Board into a single post-election appeals process.
- Make Board review of post-election decisions discretionary rather than mandatory; in other words, employers have no automatic right to post-election review of contested issues.
- Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
- Allow for electronic filing of election petitions and other documents.
The proposed revisions were published in the Federal Register on June 22, 2011 and can be found here. There is still time for written comments regarding the proposed revisions. Written comments should be submitted by August 22, 2011.
Employers can submit comments electronically via www.regulations.gov, or by mail or hand-delivery to:
Lester Heltzer, Executive Secretary, NLRB
1099 14th Street NW
Washington, D.C. 20570
In addition a public hearing may be scheduled for July 18 and July 19 to comment on the proposed amendments.
Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel