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NLRB Passes Resolution to Shorten Union Election Process and Limit Employers' Due Process Rights

Volume 10, Issue 15
December 13, 2011

At a public hearing on November 30, 2011, by a 2-1 vote along party lines, the National Labor Relations Board ("NLRB") adopted a scaled-back resolution that, if ultimately adopted, will significantly revamp its procedures for handling petitions for union representation elections. The mantra of the majority Democrat NLRB members pushing for such changes is to eliminate what they characterize as wasteful litigation by employers that serves no purpose and stands in the way of more quickly resolving election disputes. The NLRB's resolution is an interim step with a final version of the proposed rules to be presented for adoption in the near future.

Pared down from the original proposed rule changes published on June 22, 2011, the NLRB's resolution provides for quicker union representation elections and eliminates many opportunities for employer challenges by:

  • Narrowing the focus of pre-election hearings to "whether a question of representation" exists.
  • Vesting considerable discretion in NLRB hearing officers and NLRB Regional Directors to exclude issues and evidence they view as irrelevant from pre-election hearings.
  • Eliminating the right to submit written briefs after an election hearing by making the same discretionary.
  • Relegating consideration of most election related legal issues by the NLRB untilafter elections are held.
  • Requiring a showing of "extraordinary circumstances" to justify the NLRB's pre-election review of most election related legal issues.
  • Limiting the right to post-election appeals by giving the NLRB discretion to refuse to hear and decide any such appeals.

Minority Republican NLRB member Brian Hayes has sharply criticized both the rule-making process used by the NLRB and the substance of its proposed rule changes. He believes the NLRB majority's purpose in making such rule changes is to stifle workplace debate about union representation, muscle employers out of the election process and to implement organized labor's "quickie election" goals without having to obtain Congressional approval.

Indeed, the NLRB is taking such controversial action after the Employee Free Choice Act ("EFCA") failed to pass in a Democratic-controlled Congress and at the same time as the current U.S. House of Representatives approved and sent to the Senate a bill called the Workforce Democracy and Fairness Act (H.R. 3094). If passed, H.R. 3094 would forestall the NLRB's controversial new election rulemaking efforts by mandating that no union representation election could be held sooner than 35 days after filing of a petition, restricting how a union contacts prospective members and requiring a two-week waiting period between the filing of a union representation election petition and the first hearing on the matter.

In defending their actions to speed up the union representation election process, the two majority Democrat NLRB members have repeatedly asserted that the proposed rule changes do not actually alter the current timing of union elections. However, such assertions ring hollow given the practical impact of the changes. In addition, the level of acrimony of the debate over the proposed rule changes has reached new heights as evidenced by NLRB Member Hayes's letter to a congressional committee and NLRB Chairman Mark Gaston Pierce's rebuke of the same.

Combined with the very activist efforts of the NLRB's General Counsel's Office, the NLRB's proposed rule changes will lead to much quicker union representation elections. If implemented, employers will also soon find out that unions seeking to organize their workforces have, in most cases, effectively "won" as soon as their petitions are filed with the NLRB. Thus, employers should prepare now for the possibility of increased union organizing and rapid fire elections by evaluating possible "weak spots" in their personnel policies and practices, as well as training supervisors to better deal with the myriad of issues that can arise at the early stages of union representation campaigns.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.