For much of the past year, labor law headlines have been dominated by the Employee Rights Notice Poster, which would have advised employees of their rights under federal labor laws, including their right to unionize. After many legal challenges, the NLRB's mandated posting has been, at least temporarily, enjoined.
While many employers cheered this latest development, they might not have noticed that the National Labor Relations Board ("NLRB") also proposed several significant changes to its election procedures which take effect the same date as the poster requirement would have. Starting April 30, unions will, in some circumstances, have an easier time getting a quick election, giving employers less time to mount a campaign to counter the union effort.
The following are the six key changes to the NLRB's existing election procedures which will speed up the Board's election process:
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Defining the Scope of the Pre-Election Hearing. The pre-election hearing will generally be limited to questions concerning representation ("QCR") (e.g., issues affecting labor organization status, whether an Employer is engaged in interstate commerce, the scope of and appropriateness of the unit, whether another union's contract bars an election). Unlike before, an employer will not be able to challenge the job classifications in the petitioned-for unit. Whether unit composition is appropriate is perhaps the most significant issue in the new rule. The NLRB will now give deference to the union's proposed unit grouping, which may simply be the extent to which the union has successfully organized an employer's employees prior to filing the representation petition. NLRB Regions will not consider voter eligibility issues, including whether employees are supervisors. This change may create uncertainty as to whether an employee is a "supervisor" under the Act and may make it more difficult for the company to campaign. (An exception contained in the rules allows hearings on issues of individual eligibility to vote if ten percent (10%) of the unit is affected.)
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Limiting Post-Hearing Briefs. This amendment to the Rules allows Regions the discretion to not allow the parties to file briefs after representation hearings.
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Consolidating Pre- and Post-Election Appeals. Parties no longer can appeal decisions of the Region to the Board until after an election is held.
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Establishing a Standard for Interlocutory Appeals. Only under "extraordinary circumstances," will a party receive "special permission" to appeal a decision of the Region prior to an election on an issue raised at the Pre-Election Hearing.
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Eliminating the 25-Day Waiting Period. The NLRB has eliminated the 25-day waiting period after a Regional Director's decision over pre-election issues to hold the election. Under the current rules, the Regional Director must refrain from setting an election date sooner than 25 days after ordering an election to allow the NLRB sufficient time to consider appeals. Since there will be no pre-election appeals, the NLRB believes that the waiting period no longer serves a purpose.
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Establishing Standards for Post-Election Procedures. The NLRB can decline to review its Regional Directors' decisions on challenges and objections to the election. The old rule allowed an appeal of Regional Director's decision to and subsequent review by the NLRB.
The elimination of the 25-day waiting period gives employers approximately three weeks to plan and execute an effort to win the election if there is a hearing. Whereas before, an employer would have up to 42 days between the filing of a petition and an election (where there were no challenges to a petitioned-for unit), elections now may occur within 20 days of the date of the filing of the petition if there is a hearing. Stipulated elections would still be governed by the 42-day standard – creating an incentive for employers to stipulate to an election.
Additionally, the NLRB's refusal to consider voter eligibility issues at the pre-election hearing is a challenge for employers. Unions will have discretion to determine the composition of the bargaining unit without challenge prior to the election.
Based on these changes, it is more important than ever for non-Union Employers to maintain regular communications with their workers and take pro-active steps to address employee concerns. Employees satisfied with their working conditions generally don't seek union representation. Notwithstanding, employers should consider formulating a pro-active plan to educate supervisors and managers in identifying the first signs of a Union campaign and understanding what they can and cannot say or do in response.
Several years ago, employers were fearful of passage of the Employee Free Choice Act (EFCA) which would have based selection of unions based solely on employee execution of union authorization cards. Although these new rules maintain the secret ballot election, the challenges for employees to quickly respond to a union campaign may be similar to those that would have been presented by EFCA if there is a hearing which will result in a quick election. Maintaining high employee morale is the best antidote for an employer to avoiding losing an NLRB election. If management waits to conduct a campaign until an NLRB petition is filed, its chances of losing the election will be much higher.
