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NLRB Proposes To "Streamline" Representation Process

June 23, 2011
Labor and Employment Advisory

The National Labor Relations Board (NLRB) published proposed rules on June 22, 2011 governing the procedures in union representation cases. In a representation case before the NLRB, typically the union files a petition with the NLRB requesting a secret ballot election to determine whether employees in a proposed bargaining unit identified in the petition want to be represented by the union. If a majority of those employees vote for union representation, the union will be certified as the exclusive bargaining representative for those employees as long as there was no election misconduct or any other grounds for setting aside the election.

The time period between the filing of the petition and the election is often a period of significant activity and litigation. After the filing of the petition for election, the parties have an opportunity to challenge various aspects of the petition. An employer, for example, may challenge the composition of the bargaining unit proposed by the union, or argue that one or more employees are ineligible to vote. The employer may also challenge the union's assertion that it has a sufficient showing of interest to warrant an election, or raise various other legal bars to the election.

The procedures for resolving the above challenges delay the petitioned-for election. That delay also gives the employer additional time to get its message out to employees before the election, which is often an important step towards winning an election. For that very reason, from the union's perspective, the quicker the election the better. Below is a brief outline of the new proposed rules for representation cases, some of which will be applauded by most (such as electronic filing) but others of which are clearly designed to result in a quicker election to benefit organized labor.

The proposed rules, if adopted, will do the following:

  • Allow for electronic filing of election petitions and other documents.
  • Delay litigation over many eligibility issues until after the election.
  • Require the NLRB to issue an Initial Notice to Employees of Election immediately after the filing of the petition. The notice must include a description of the election procedures and set a pre-election hearing within seven days of the date of the notice. The employer must also post the notice and distribute it electronically to employees if the employer typically communicates with employees via electronic means.
  • Require the employer to issue a Statement of Position describing its position with respect to the election within the time period set in the notice of pre-election hearing.
  • Require the employer to produce a voter list with its Statement of Position, including voter names, work location, shift, classification, telephone numbers, email addresses, and home addresses by the opening of the pre-election hearing. Under current practice, voter telephone numbers and e-mail addresses need not be disclosed and the voter list is not even required until after an election has been ordered. While the NLRB maintains that this change gives the union a better opportunity to assess voter eligibility before the election, it also gives the union greater access to employees for pre-election campaigning.
  • Bar employers from challenging the proposed bargaining unit or the eligibility of voters if it fails to timely provide the detailed voter list and Statement of Position described immediately above.
  • Require the employer to issue a final voter list electronically within two work days, rather than seven days, following direction of an election.
  • Require any post-election hearings to be held within 14 days of the election.
  • Allow parties to wait until after the election to seek Board review of pre-election and post-election decisions by the Regional Director. Under current practice, parties must seek review of the Regional Director's rulings before the election.

Member Hayes, the only remaining Republican appointee on the Board, disagrees with the proposed rules and issued a lengthy dissent. He summed up his disagreement as follows:

"What is certain is that the proposed rules will (1) substantially shorten the time between the filing of the petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct. Thus, by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought-after “quickie election” option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining."

The proposed rules are open for public comment for a period of 60 days. The NLRB expects to issue a final version of the rules this summer. More information about the NLRB's proposed rules may be found here.

As we have indicated in the past, the demise of the Employee Free Choice Act does not end organized labor's ability to make significant changes to federal labor law through administrative action by the NLRB. The proposed rules for pre-election procedures is one more example of strengthening organized labor via administrative rule changes.

If you have any questions about the NLRB's proposed rules, please contact any member of Varnum's Labor and Employment Relations Practice Team.

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