Faster Elections, Fairer Results, So They Say – But Employers Know Better

14 February 2014 Labor & Employment Law Perspectives Blog

As the next step in a series of moves that will likely confer substantial advantages to unions in organizing campaigns, the National Labor Relations Board has resurrected proposed changes to its election rules. While the Board majority claims the changes will streamline the election process, employer groups worry they will handcuff employers’ ability to effectively oppose union organizing efforts.

On February 5, 2014, the Board reissued for public comment the same proposed amendments to its representation case rules it had originally proposed in 2011 but that did not at that time survive legal challenge because the Board did not follow proper procedure in proposing the amendments. Appearing to do so this time around, the current Board members, voting strictly along party lines with the three Democratic members for and the two Republican members voting against proposing the amendments, have reissued the proposed rule changes that prompted significant concern among employers the first time around.

The most significant potential rule change is the Board’s proposal to substantially shorten the time that elapses between the filing of a representation petition and when it holds an election. Additional rule challenges, as summarized by the Board, will also include allowing electronic filing and transmission of election petitions, adding employee telephone numbers and email addresses to voter lists “to facilitate communications with voters,” and requiring consolidation of all election-related appeals into a single appeals process. While the Board majority asserts these changes will “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation,” opponents argue that the reduced time periods will both significantly reduce employers’ opportunity and ability to communicate their views on unionization, delay challenges to the propriety of bargaining units until after an election, and give unions new and increased access to voters
during the period before an election when employers will have a shorter period of time to themselves communicate with them. The Board has stated it will receive comments on the proposed rules changes until April 7, 2014, and will thereafter consider such comments – as well as reconsider those submitted in 2011 – thereafter.

The Board’s proposed rule changes come in sequence after earlier actions by the NLRB and the Obama Administration that portend significant changes to the overall union organization, campaign and election processes that will likely tilt the playing field to organized labor’s advantage. In August 2011, the Board issued its Specialty Healthcare decision allowing unions to unilaterally define and organize “micro-unit” bargaining groups and potentially gain a foothold inside an employer organization. Also, slated for final action later this year is the Department of Labor’s “persuader rule,”  which seeks to require certain disclosures by firms – including law firms – that counsel employers on traditional labor issues, potentially significantly hampering an employer’s ability to obtain counsel on labor issues and create substantial attorney-client privilege concerns.

As in 2011, the Board’s proposed rule changes to the representation process will likely come under legal challenge, as many of the challenges brought in 2011 were not addressed because the federal court concluded the Board did not follow proper procedure in the previous rulemaking effort. Regardless of the ultimate outcome of the proposed rule changes, and even after the failure of the once-heralded but now essentially dead Employee Free Choice Act, the Obama Administration continues to push an agenda advantaging unions. Employers would be wise to stay on top of the ongoing developments so that, if a union comes knocking on their door, they are as equipped as possible to rapidly respond.

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