The National Labor Relations Board ("NLRB") has re-issued proposed rules expediting and changing the rules for union elections, the process by which a union becomes the bargaining representative of a group of employees. Similar rules had been approved in 2011, but were struck down on procedural grounds shortly after becoming effective in 2012.
The new rules, if made final, would shorten the time between a union's filing of a petition for an election and actual election. They would also delay the hearing on challenges to eligible voters and other election issues to after the election. Some of the key changes include:
- Deferring litigation over employees' eligibility to vote until after the election.
- Shortening the time to hold pre-election hearings on issues including the definition of the bargaining unit and NLRB jurisdiction to just 7 days after an employer is notified of the election petition.
- Requiring parties to submit a statement of position before the start of any pre-election hearing identifying issues regarding, for example, the NLRB's jurisdiction, the appropriateness of the identified bargaining unit, and the procedures for the election. If an issue is not raised in this pre-hearing statement, it would be waived.
- Requiring the employer to provide a preliminary list of employees in the potential bargaining unit to the NLRB and the union before an election is scheduled, and requiring the employer to provide the final list, now to include name, address, telephone number, and email address of employees, in only two days (rather than seven) after the election is scheduled.
- Delaying NLRB review of local agency decisions until after the election and making such review discretionary rather than mandatory.
A major concern is that these proposed rules would mean an election could be conducted before an employer has time to prepare and present its position to its employees. Because elections will occur so much faster, employers will have little time to identify, establish, and communicate their strategy in responding to union organizing after an election petition has been filed. Employers should, therefore, take measures now to be prepared in the event of a union campaign. Proactive steps employers should take include:
- Training front line supervisors to notice union organizing activities in advance of receiving an election petition and instructing them to inform higher level management immediately upon suspicion of organizing activities;
- Establishing employee relations programs and clear avenues of communication for employees to express concerns to management without the need for a union, and, to the extent possible, being responsive to those concerns;
- Reviewing and updating employee handbooks and policies and ensure they are being implemented consistently and fairly by managers;
- Training supervisors and managers on the do's and don'ts of what can be said and done before and during a union election campaign;
- Considering vulnerabilities that a union might focus on to garner support from workers, and being prepared with a response to those arguments;
- Considering in advance whether your organization has any general arguments that will need to be included in the position statement that would have to be filed within seven days of receiving an election petition (i.e., opposing NLRB jurisdiction, identifying appropriate bargaining units, etc.)
These rules are not yet in effect. The period to provide comments to the government ends April 7, 2014. Even if the rules are finalized, it is expected that there will be litigation over the NLRB's right to issue such rules. Many of the issues raised in suits that challenged the 2011 version of the rules remain unresolved. Nonetheless, the proactive steps identified above are recommended under current election rules too, and they become even more crucial under the new rules.
von Briesen & Roper Legal Update is a periodic publication of von Briesen & Roper, s.c. It is intended for general information purposes for the community and highlights recent changes and developments in the legal area. This publication does not constitute legal advice, and the reader should consult legal counsel to determine how this information applies to any specific situation.