The National Labor Relations Board is once again flexing its muscles to the detriment of the nation’s employers. On December 21, 2011, the Board issued its final rule amending its union election procedures; it becomes effective April 30, 2012. The Board intends the new rule to “reduce unnecessary litigation and delays.”
The new rule will curtail an employer’s ability to make both pre-election and post-election challenges to the composition of collective bargaining units and voter eligibility. It also greatly reduces the amount of time employers have to educate employees on the pros of a non-union workplace before an election takes place. In essence, the new rule sets the stage for employers to be subjected to “ambush” or “quickie” elections with little to no recourse to remedy their consequences.
The NLRB’s Current Rule
Under the current election rules, the NLRB’s regional director may conduct a hearing to determine any issues regarding the make-up of the proposed collective bargaining unit or the eligibility of voters before an election takes place. The union and employer may file briefs with the regional director after the hearing. After the regional director makes a decision, either side may present an appeal to the Board itself in Washington, D.C. The Board then has 25 days to review the regional director’s decision before an election can proceed.
Specific Election Procedures Affected by the New Rule
The NLRB’s new rule will make several specific changes to the current election procedures. All of them work together limit pre-election delays, resulting in shorter campaigns and quicker elections.
Regional directors or hearing officers will have the authority to limit evidence introduced in pre-election hearings to only evidence relevant to the existence of a “question concerning representation.” A “question concerning representation” is a legal term for those issues the Board must decide regarding elections. For example, the regional director will have a hearing on whether the Board has jurisdiction to hold an election under the National Labor Relations Act.
But the new rule will effectively eliminate routine, pre-election challenges to the formation of an appropriate bargaining unit or to the eligibility of voters. For example, employers will no longer have the right to challenge whether a supervisory employee is eligible to participate in the proposed bargaining unit until after the election. The National Labor Relations Act forbids including supervisory employees in the bargaining unit, and many pre-election hearings involve determining whether an employee is a supervisory employee under the statute. Supervisory employees are typically a great ally for employers during the election process. Including supervisory employees in the proposed bargaining unit could frustrate the employer’s ability to rely on these employees during an election, even if their vote later will be thrown out.
The new rule expands the regional director’s or hearing officer’s discretion over post-hearing briefs, including determining whether either party may file a brief, determining the amount of time allowed to file briefs, and limiting the subjects that can be addressed.
A party’s right to request a pre-election review of the regional director’s decision by the Board is eliminated under the new rule. All requests for review will be deferred until after the election and consolidated with review of any post-election challenges.
The new rule limits pre-election appeals of a regional director’s or hearing officer’s decision to “extraordinary circumstances where it appears that the issue will otherwise evade review. “The current 25-day waiting period between the regional director’s issuance of a direction of election and the actual election date is now eliminated. Finally, the new rule makes the Board’s review of the regional director’s decision discretionary. The Board may deny a request for review if the request fails “to create compelling grounds for review.” As a result, many Regional Director decisions will be final.
Opposition to the New Rule
The NLRB’s new election rule has faced sharp criticism since the Board issued its notice of proposed rulemaking in June 2011. For example, in October 2011, Representative John Kline (R-MN) introduced H.R. 3094, the “Workforce Democracy and Fairness Act” as a direct counter to the NLRB’s new rule. The bill would ensure employers have at least 14 days to prepare their case to a regional director and an opportunity to raise concerns during the pre-election hearing. The bill would prescribe that elections will occur at least 35 days after the filing of an election petition. The bill would reinstate the traditional pre-election standards for determining the eligibility of voters. While the House of Representatives passed the bill in November 2011, most pundits predict the Senate will not even vote on it.
Additionally, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit in the United States District Court for the District of Columbia challenging the new rule. Therefore, the courts will have their say as well.
Preparing for the New Rule
To prepare for implementation of the new rule, employers should educate employees about the positives of a non-union workplace and the downsides to unionization. Employers should provide mechanisms for employees to voice their concerns about the workplace and address any complaints in a reasonable and timely manner.
Employers should train supervisors and managers on how to handle situations if they become aware of potential union activity. Employers should encourage supervisors and managers to communicate any potential union activity to upper-level management. Employers should also train supervisors and managers on what to say (or what they cannot say) to lower-level employees about union activity.
Finally, employers should review current policies as well. Properly drafted policies are important should union organizing occur, because they cannot be implemented once an election is looming. Additionally, the Board may decide that a poorly drafted policy is unlawful and interfered with an election that the union lost.