NLRB to Reissue Amendments to Election Rules NLRB to Reissue Amendments to Election Rules

NLRB to Reissue Amendments to Election Rules

The National Labor Relations Board (NLRB) announced this morning that it is reissuing its proposed amendments to union election procedures.  The proposed amendments will be identical to those first issued in June 2011, which were rushed through the comment and review process, with approval of some changes in late December 2011.  Those rules were  ultimately struck down by a federal district court on the grounds that they had been adopted without a valid quorum of the Board.  The new proposed rulemaking simply restarts this process.  The proposed rulemaking will appear in tomorrow's Federal Register.
The most significant of the previously proposed changes were:
·         Expedited Elections - While elections are usually held within 42 days from the date the petition is filed under current NLRB procedures, the proposed rules would require the election to be scheduled at the "earliest date practicable."  Taking into account the other requirements of the rules, elections could be held as little as 10 days to 2 weeks after the petition is filed. The reason this compressed time frame is problematic for employers is that unions have no time limit on their organizing efforts and may spend months attempting to organize a workplace (often covertly) before a petition is ever filed. Since the petition can be an employer's first notice of union organizing activity, this leaves the employer with scant time to provide essential information to employees about what it really means to be represented by a union.
·          Voter Lists - Employers must (within 2 days of approval of an election agreement or the direction of an election) provide not only names and addresses of eligible employees, but also available telephone numbers and email addresses. The rules - perhaps by design - do not specifically exclude company email addresses from disclosure. Failure to provide required information may result in setting aside an election.
·         Hearings/Position Statements - A hearing must be held within 7 days to determine voter eligibility issues, including whether the unit (the departments or work groups) petitioned for by the union is appropriate.
  • Prior to the hearing, the employer must submit a statement of its position regarding the unit, voter eligibility or any other issues. This presents not only an additional burden, but the failure to submit or raise an issue results in waiver,  meaning that the unit or voters cannot be challenged later.
  • If it is determined that challenged voters would be less than 20 percent of the proposed unit, the hearing is concluded and the vote occurs. This could be particularly significant if the union seeks to include persons that the company believes are supervisors, because the company would not be able to use them to communicate with employees or involve them in a campaign even if it is proven later that they are supervisors.
  • Written post-hearing briefs arguing the parties' positions, which were previously allowed 7-21 days after a hearing, would be allowed only with special permission and only then within the more stringent timelines. The significance is to further expedite the process, giving less time for consideration of the issues involved and for communication with employees.
  • Many challenges would occur post-election and review of decision by the actual Board would be permissive.
The proposed rulemaking will include a public comment period that will open tomorrow and close April 7, 2014, with reply comments due by April 14, 2014.  The Board will also hold a public hearing the week of April 7, 2014.  Instructions on submitting comments may be found here.
At this time it appears that a repeat of the 2011 process, with possible enactment of the full proposal, is quite possible this time around, given that the NLRB is operating with a fully confirmed, five-member Board (three democrat, two republican – with the vote here split on party lines).  This will eliminate many of the procedural hurdles of the previous amendments. We will continue to monitor the progress of the proposed rules and provide updates as more information becomes available. 
If you have questions about these or any other employment-related matters, please contact Ryan Poor at or 317-236-5976, or any other member of our Labor and Employment Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances. 
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