On February 4, 2014, the National Labor Relations Board (“NLRB”) announced that it was issuing proposed amendments to the rules governing union representation elections. The proposed amendments are identical to the changes that were proposed by the Board back in June 2011. As proposed, the amendments contain several alarming and troubling changes to the current process, including:
Limiting pre-election regional hearings to issues relevant to the question of whether an election should be conducted and allowing the hearing officer to exclude evidence regarding voter eligibility and other matters;
Requiring employers to produce voter lists containing employee telephone numbers and e-mail addresses within two days of the Regional Director’s approval of an election agreement or direction of election;
Allowing hearing officers to decide whether and when to accept post-hearing briefs;
Eliminating a parties’ right to file with the NLRB a pre-election request to review a Regional Director’s decision and direction of election, deferring all such requests until after the election; and
Rendering discretionary the NLRB’s review of a Regional Director’s resolution of certain election disputes (as opposed to an automatic right of appeal).
As you may recall, in December of 2011, a slightly different watered-down version of the proposed election rules were passed by then NLRB Chairman Mark G. Pearce and former member Craig Becker (member Brian E. Hayes dissenting) just before Becker’s term expired. The final version of the election rules were dubbed by critics as the “quickie” or “ambush” election rules, because they expedited the union election process—essentially shortening the time from petition to election to three weeks or less.
The watered-down version of the rules was implemented for a short time in 2012, but ultimately struck down in May 2012 by the U.S. District Court for the District of Columbia because the Board lacked a quorum (3 out of 5 members) when it decided to adopt them. The NLRB promptly appealed the district court’s decision to the United States Court of Appeals for the District of Columbia Circuit. This past December, the NLRB stipulated to a dismissal of its appeal paving the way for the Board—which for the first time in years currently has a full complement of members—to resurrect its original proposed changes.
The new proposed rules have been printed in the February 6, 2014 edition of the Federal Register. The Board will accept comments on the proposed rules until April 7, 2014 and will hold a public hearing on the proposed rules in Washington, D.C. during the week of April 7, 2014.
If the proposed amendments are passed, either in their original form or a watered-down version like we had in 2012, the amendments will compress the election process, which will hinder an employer’s ability to effectively communicate with employees about the negative impacts of unionization. Limiting an employer’s ability to communicate with employees about unionization deprives employees of the ability to make fully informed decisions before casting their ballots.
Employers should expect to see a final version of the new “quickie election” rule by the end of 2014. When the “quickie election” rule is in place, organizing activity will likely increase as unions will want to test the effect that the new rule has on successfully organizing employees across a variety of industries.