July 20, 2011

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Obama Board Rushes In Where Lawmakers Fear to Tread

In the June 22, 2011, edition of the Federal Register, the National Labor Relations Board ("NLRB" or "Board") published a Notice of Proposed Rulemaking that would profoundly change the representation election process by, among other things, drastically shortening the time between a representation petition and election.

To illustrate what the NLRB has proposed, imagine an election for a political office with two Candidates - Candidate "A" and Candidate "B."  Candidate A has been surreptitiously campaigning for months (or even years).  Candidate B is completely unaware that there is an upcoming election, or that he is even a candidate.  As soon as Candidate A believes he has enough votes to win an election against Candidate B, Candidate A announces that he wants an election.  Under the current rules, Candidate B would have approximately 42 days to campaign, educate voters, communicate facts and other information, and gain support.  Under the proposed new rules, however, Candidate B would have a mere 10 to 21 days to campaign.  

This is just part of what the NLRB's proposed new rules would do to an employer.  During the 10 to 21 days following the filing of a petition, an employer would also have to complete additional, burdensome tasks such as learning the basic rules governing the election process; staking out a legal position on a host of issues the business might never have previously considered; preparing for a hearing that will be set one week from the date an election is requested; and compiling lists of detailed information to provide to the NLRB and the union requesting the election.  Needless to say, an employer would be under a severe disadvantage under the NLRB's proposed rules.

If adopted, the NLRB's proposal would also result in the following significant changes to representation election rules:

  • Election petitions could be filed electronically;
  • An employer who customarily communicates electronically with employees would be required to send NLRB election Notices electronically to its employees;
  • Pre-election hearings would be scheduled to take place seven days after the filing of a petition;
  • Prior to the commencement of any pre-election hearing, an employer would be required to both file a "Statement of Position" setting forth its position on a host of legal issues (or forever waive the right to raise any issue not identified in the Statement of Position), and provide the union with a list of employee names, work locations, shifts, and job classifications;
  • In addition to home addresses, an employer would be required to give the union access to employees' telephone numbers and available e-mail addresses within two days of the direction of an election;
  • The scope of issues that may be litigated before an election would be significantly limited (including postponing most questions regarding the eligibility of particular individuals or groups of potential voters); and
  • The NLRB could decline to review many of the Regional Directors' decisions, substantially limiting the appeal options available to employers.

The proposed rules represent the latest (but likely not the last) NLRB action that skews the playing field to favor unionization and severely restricts - and in some cases probably eliminates  - employers' ability to effectively communicate facts and opinions to their employees prior to elections.  In effect, this proposal denies workers the opportunity to obtain necessary information and the ability to make an informed and well-reasoned decision regarding whether or not to be represented by a labor organization.

This latest benefit to organized labor comes as no surprise from a Board whose members were appointed by a President who openly admitted that he "owe[s] those labor unions."  Since organized labor was unsuccessful in its attempts to pass the controversial Employee "Free" Choice Act ("EFCA"), Obama's nominees on the NLRB have been doing all they can to tip the scales in favor of labor unions, and have shown that they are willing to achieve through rulemaking and adjudication the changes that unions sought but were not able to achieve through Congress.

Given the current composition of the Board, there is no reason to believe that the proposed rules will not be enacted as drafted, or in a substantially similar form.  Therefore, employers need to be more vigilant than ever about detecting organizing activity and being prepared to handle a petition for a representation election in a very short period of time.  A contingency plan should be in place, and supervisors should be trained so that they know what to look for and know their lawful role in a union organizing campaign.  There will be little time for such tasks with only 10 to 21 days advance notice of a critical election.[1]

If you have questions regarding the NLRB's proposed rules and how your business may be impacted, or any other aspect of labor relations, please contact Ellen Glass, Nate Niemuth, or any other member of our labor and employment practice group.  

[1] While the NLRB did not dictate a timeline for the conduct of an election, the proposed rules require the regional director to schedule the election for "the earliest date practicable."  In his highly-charged dissent from the proposed rules, the lone Republican Board member, Brian Hayes, indicated that the expedited election process would result in elections taking place between 10 and 21 days after the filing of the petition.

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