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National Labor Relations Board Proposes New Rules That Will Assist Union Organizing Efforts

On June 21, 2011, the National Labor Relations Board (Board) announced plans for new rules that would substantially assist union organization efforts. The Board’s majority claimed that the new rules are necessary to “remove unnecessary barriers to the fair and expeditious resolution of [elections and other representation issues].” Many commentators, however, believe that the Board simply is attempting to help unions organize workers more effectively. As Board member Brian E. Hayes correctly pointed out, the Board consistently meets its publicly stated performance goals for resolving representation cases, and the proposed rules would substantially impair employers who seek to contest union organizing efforts.

Unless the new rules are successfully challenged, they likely will become effective in early 2012. If the rules are enacted as written, they will have the following effects:

1. Speed Up The Election Process

The primary effect of the new rules would be to dramatically streamline the election process. Elections currently are held, on average, 38 days after parties (generally unions) file representation petitions. Under the new rules, elections likely would be held only 10-20 days after petitions are filed.

By helping unions obtain elections more quickly, the new rules would severely restrict employers that seek to inform their employees in a lawful manner about the potential results of unionization. Unions generally campaign for months prior to filing election petitions, and the new rules would afford employers only a fraction of this time to help employees make informed decisions. Due to the reduced time between petition filings and elections, employers will be challenged in expressing their free speech rights.

Specifically, the new rules would streamline the election process by:

  1. Permitting parties to file and transmit virtually all election documents electronically, rather than through regular mail;
  2. Scheduling pre-election hearings only seven days after election petitions are filed, absent extraordinary circumstances;
  3. Preventing parties from litigating most voter eligibility issues until after elections have been held;
  4. Prohibiting parties from appealing Board regional directors’ rulings on pre-election disputes until after elections are held, absent extraordinary circumstances, and eliminating automatic appellate rights;
  5. Requiring regional directors to schedule elections at “the earliest date practicable,” if elections are warranted; and
  6. Scheduling post-election hearings 14 days after ballots are counted.

The current election process grants employers far more time to challenge the petitioned for unit and to campaign. The Board’s proposed procedures would mark a dramatic shift in the election process.

2. Restrict Employers Who Seek To Contest Disputed Issues

Another aspect of the new rules, in addition to the streamlined election process, also would make it more difficult for employers to effectively contest disputed issues. The rules would force employers to define their positions on most contested issues prior to pre-election hearings, including issues relating to unions’ jurisdiction, bars to elections, election schedules, and the appropriateness of bargaining units.

Employers would be required to file briefs, or “position statements,” that set forth their positions on all election-related disputes (except voter eligibility), prior to pre-election hearings. Any issues that employers failed to raise in these position statements would be waived. In other words, employers would be “locked-in” to their positions before they ever heard the evidence submitted by the union. Currently, employers may question witnesses and review unions’ evidence at pre-election hearings, prior to defining their positions, in order to explore potential issues, identify disputes, and further develop their positions. This new rule would require employers to significantly modify their pre-election strategies.

3. Help Unions Obtain More Information About Employees

Finally, the proposed rules would significantly expand the information that unions can obtain about employees, and increase the speed at which unions can obtain such information. Currently, employers are not required to disclose lists of eligible voters until after Board regional directors order elections. Under the new rules, employers would be required to disclose preliminary voter lists within seven days after representation petitions were filed, and prior to pre-election hearings. These preliminary voter lists would need to include potential voters’ names, work locations, shifts, and job classifications.

Employers also would be required to provide final voter lists two days, rather than seven days, after elections were ordered. These voter lists would be required to include more information about employees than that required under the current rules, including employees’ telephone numbers, email addresses, and potentially even company-provided email addresses. This rule could effectively allow unions to conduct campaigns by sending mass-emails to employees while they are at work.

Finally, employers would be required to send voter lists electronically, and send them directly to unions. The current rules permit employers to mail these lists to Board regional offices, which then disclose them to unions. Again, this rule would help unions obtain information about employees more quickly.

Conclusion

Altogether, if the proposed rules are enacted as written, they will significantly assist union organizing campaigns. Unions win slightly greater than one-half of representation elections; thus, rules that help unions obtain elections will improve their chances of success. Employers can help combat this potential result by developing lawful and effective campaign strategies as soon as possible. After a union files an election petition, it already may be too late to develop an effective strategy.

The NLRB will accept comments on the proposed rules until August 22, 2011. Interested parties can submit comments electronically at www.regulations.gov, or by mail to Board Executive Secretary Lester Heltzer at 1099 14th Street N.W., Washington D.C. 20570-0001.

If you have questions regarding the content of this alert, please contact any member of Greenebaum’s Labor and Employment Practice Group.


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About Greenebaum Doll & McDonald PLLC

Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 150 professionals in five offices, serving local, national and international clients in virtually every industry. For more information, visit www.greenebaum.com.

 

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