The NLRB has adopted comprehensive changes to the procedures for representation elections under the NLRA. Some changes, such as the ability to file documents electronically, clearly bring Board election procedures into this century. Unfortunately, a majority of the changes only speed up the election process itself. The adopted changes complicate election proceedings while reducing the time for compliance. As the dissenting Board Members thoroughly discussed, these changes disproportionately burden employers while simultaneously failing to provide sufficient time for employees to get information necessary to make an informed decision, the keystone of the Act. For example, pre-election hearings are not permitted in most cases—litigation at the pre-election hearing is limited to “those issues necessary to determine whether it is appropriate to conduct an election.” Even if a hearing is permitted, it must be held eight days after hearing notice is served. The employer must submit a Statement of Position within eight days (or the day before the hearing). This statement will bind the employer in all subsequent litigation. So, don’t forget anything! Employers must also provide a list of prospective voters to the Board agent and the Union at the same time it provides its Statement of Position, before the NLRB’s regional director directs an election or approves an election agreement. Once the NLRB’s regional director approves an election agreement or directs an election, the employer must provide an eligible voter list within two days and this list must now include personal email addresses and phone numbers of employees. In this rush to the election, the employees will likely hear only one voice—that of the union organizer.
On February 5, 2014, the National Labor Relations Board (“NLRB”), acting this time with a full quorum, reissued its highly controversial 2011 changes to representation election rules. The proposed changes are the same as those the NLRB presented in 2011. The rule changes would:
- radically speed the pace of representation elections,
- eliminate almost all pre-election challenges to voter eligibility, and
- effectively eliminate the ability of employers to communicate with employees prior to voting.
The proposed rules will be subject to a 60 day comment period, followed by a public hearing in April. The NLRB majority did not revisit the now stale, purported factual findings that led to the original proposed rule changes. These factual findings were extensively questioned in the prior comment period. Much of the purported employer “misconduct” cited was based not on the NLRB’s own case handling statistics, but on the reports of union organizers.
The NLRB claims that the new rules will stream-line the election process. On the contrary, these radical and unnecessary alterations to a process that has stood for over 75 years will likely result in extensive and costly litigation.