On June 21, the National Labor Relations Board (NLRB or Board) announced new proposed rules that would substantially change—and speed up—the existing union election process, as well as limit employer participation in that process. This appears to be an effort by the Board to achieve, through rulemaking, portions of the failed Employee Free Choice Act (EFCA).

The proposed rules were printed in the June 22, 2011 edition of the Federal Register. The Board will accept comments on the proposed rules until early September 2011, and will hold a public hearing on the proposed rules in Washington, D.C. on July 18 and 19, 2011. Final rules likely will be issued sometime in the spring of 2012, barring congressional action or litigation (both of which are strong possibilities).

Background

The National Labor Relations Act (the NLRA or the Act) gives employees the right to “form, join, or assist” unions; to bargain collectively with their employer; or to refrain from engaging in such activities. The Board has long played a central role in the election process, overseeing most aspects of the pre- and post-election process. Since the NLRA was enacted, built into the pre-election process was a means by which employers could challenge the appropriateness of the petitioned-for unit of employees through an evidentiary hearing process, briefing, and Board review.

The Board also administers representation elections. For many years, it has had a fairly stringent and successful internal policy designed to schedule elections within approximately six weeks after the petition is filed. In 2010, initial elections were held in a median of 38 days, and more than 95% of initial elections were held within eight weeks of the filing of a petition. For all petitions filed, the average time to an election was 31 days.