As has been expected, for quite some time now, the National Labor Relations Board tomorrow will officially publish a Notice of Proposed Rulemaking to drastically shorten the time for union representation elections. According to the NLRB’s fact sheet, "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing." However, these proposed amendments to the NLRB’s Rules and Regulations will have a drastic effect on an employer’s ability to respond to organizing campaigns and for employees to become educated about the advantages and disadvantages of union representation and collective bargaining.
Under current Board policy, the NLRB strives to hold representation elections within 42 days after the petition is filed. However, the Board’s proposed amendments will shorten that period by days, if not weeks, by deferring most voting/bargaining unit issues until after the election and eliminating the parties’ ability to request review of a Regional Director’s decision prior to the election.
Specifically, the proposed rules will require the Regional Director to schedule the pre-election hearing to begin within seven days after a hearing notice is served. By the start of the hearing, the employer must state its position on election-related issues that it intends to raise at the hearing, including the Board’s jurisdiction; the appropriateness of the bargaining unit sought by the union, and the type, date, and location of the election. The union will then respond to the positions taken by the employer. After hearing the parties’ positions, the hearing officer will identify their disagreements and accept evidence only on genuine issues of material fact affecting those issues. However, and most importantly, unless the issues affect 20 percent or more of the unit, the litigation of those disputes will be deferred until after the election. Moreover, even if the unit issues are litigated prior to the election, the parties cannot request review from the Board prior to the election.
Once the Regional Director issues his or her direction of election, the employer will have two days, as compared to seven days now, to provide a final list of eligible voters to the union (the Excelsior list). Current rules and regulations only require the employer to provide names and addresses, but the new rules will require the employer to list phone numbers and email addresses on the Excelsior list when available.
The proposed rules also seek to take advantage of modern communication technologies. In addition to providing email addresses on the voter eligibility list, the new rules will allow petitioners to file election petitions electronically and for the NLRB to provide notices directly to employees through email when addresses are available.
The Board invites comments on its proposed rulemaking in two ways. First, the Board is holding a public hearing scheduled for July 18 and possibly July 19. Second, it is providing a 60-day period for written comments, with 14 days for replies, that may be submitted electronically though Regulations.gov or by mail to the Board’s Washington D.C. headquarters. As with the Department of Labor’s proposed revised interpretations of the Labor-Management Report and Disclosure Act issued today, employers are encouraged to assess the potential impact of these proposed changes on their operations; and to consider submitting comment.