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NLRB Adopts Amendments to Union election Procedures

December 22, 2011

By Barbara A. Bloom

LABOR LAW UPDATE

On December 22, 2011 the National Labor Relations Board published a final rule amending its election case procedures. The NLRB contends that the rule, which becomes effective April 30, 2012, will “reduce unnecessary litigation and delays.” In reality, though, the rule is a gift to organized labor. The rule streamlines the process for unions to organize and limits the legal challenges to organizing efforts that employers may pursue before workers vote (even legal challenges related to whether certain employees are eligible to vote are delayed until after the vote).

The NLRB’s move follows a tumultuous six months. As discussed in our June 21, 2011 Alert, the NLRB on that date proposed new rules to speed up the union election process. During the public comment period, a number of the proposed rules proved to be extremely controversial; the NLRB received more than 65,000 comments about its proposal. The comments prompted the NLRB to reconsider the scope of its proposal and at a November 30, 2011 meeting, a divided NLRB voted 2-1 in favor of a resolution to draft a final rule containing only a portion of the originally proposed amendments. The NLRB tabled the remaining issues, which had included but were not limited to provisions setting a pre-election hearing within seven days after the filing of a union petition and sharing employees' email addresses and personal phone numbers with union organizers.

The NLRB states that new rule set to take effect on April 30, 2012 focuses primarily on the procedures to be used when the parties cannot agree on issues, such as whether the employees covered in an election petition are an appropriate voting group. Pre-election hearings will be limited to a determination of whether an election should be conducted. In such cases, the hearing officer will have discretion to limit evidence to what he/she believes to be issues relevant to the question of representation, as well as over the filing of post-hearing briefs (including over the subjects to be addressed and the time for filing).

In addition, the new rule eliminates the parties’ right to file a pre-election request for review of a regional director’s decision and direction of election and provides for a single post-election request for review. The NLRB’s amendments also eliminate the recommendation that the Regional Director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election. The new rule also makes all NLRB review of regional directors’ decisions discretionary, and it narrows the circumstances under which a request for special permission to appeal to the NLRB will be granted.

As forecasted in our June 21, 2011 Alert, these changes likely will shorten the time period from petition to vote in many cases. There is potential harm for employers (and employees) under the new NLRB rule: employers will have less time to inform employees about the disadvantages of unionization; and employees will have less time to hear the employer side of the story about unions prior to an election. NLRB Member Brian Hayes, the lone Republican on the Board, earlier had threatened to resign over the rule, but ultimately decided not to do so. The remaining NLRB Members, Craig Becker and Mark Pearce, had to move quickly to pass the new rule, as Member Becker’s recess appointment ends at the close of 2011 (which will bring the NLRB from 3 to 2 members and will leave the Board with too few members to form the quorum needed to issue final rules and regulations).

Between now and the end of April when the new rule takes effect, we encourage employers to audit their existing policies, wages, benefits and other workplace issues, in order to assess potential vulnerability to a union organizing effort and to be prepared to respond. Once a union election petition is filed, private sector employers now will have less time to respond and communicate their message before an election is held.

Please feel welcome to contact Bullard Law to help you with these matters, as well as any other questions or concerns about any other employment, labor relations, and employee benefits issues. 
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