Hunton Employment & Labor Perspectives

First introduced in the Employee Free Choice Act as an alternative to card check, the quickie election has been brought back as part of the National Labor Relations Board’s (“NLRB”) rulemaking process.  On June 21, 2011, the NLRB, with Board Member Brian Hayes dissenting, issued a Notice of Proposed Rulemaking suggesting numerous changes to the procedures governing union elections.  These proposed changes are significant and if accepted would both alter the landscape of secret ballot elections and place employers at a severe disadvantage.

Proposed Changes

Timing of Elections.  As indicated, one of the most notable proposed changes is the timing of the election itself.  The Board’s proposed amendments would reduce the time between the filing of a petition and the election, with elections being held as early as 10 days after a petition is filed.  In 2010 the median timing of an election was 38 days after the filing of a petition.

Litigation Limitations.  One reason quickie elections would be possible is because of the numerous proposals made regarding litigation related to elections.  First, the amendments would require that any pre-election hearing disputing the right of the union to hold the election, be held within seven days of when the hearing notice is served.  Currently, Regional Directors have flexibility in scheduling the pre-election hearing and can consider special circumstances.  Second, at the hearing employers would be required to file a Statement of Position explaining all of their legal objections to the elections.  Notably, failure to object to an issue would be fatal because the objection would be deemed waived.  Third, prior to an election the hearing officer will only rule on disputes that would affect more than twenty percent of the bargaining unit.  Fourth, if the hearing officer does rule prior to the election, parties cannot request review of the ruling by the NLRB until after the election. 

Access to Employee Information.  The changes would require employers to provide unions access to employee information within two days of approval of an election agreement or issuance of a direction of election.  Currently employers have seven days to provide this information.  The proposals would also require employers to provide employees’ available phone numbers and email addresses, information employers do not currently provide.  Finally, the amendments further propose that employers must provide this information electronically.

Potential Impact

In its fact sheet that compares its proposals to the current procedures in place, the NLRB claims that it periodically reviews and revises its procedures to improve its service to the public and that the proposed amendments would help it carry out its duties under the National Labor Relations Act (“NLRA”).  Furthermore, the NLRB claims that the motivation for the proposed rules is to streamline the election process, reduce unnecessary litigation and facilitate the use of electronic communications and document fillings.  Unfortunately, while the proposed amendments may do exactly that, they do so to the detriment of employers. 

The Board’s proposed changes will clearly provide significant benefits to unions and as noted by former NLRB Chairman Peter Schaumber, hurt employers and lead to uninformed voters.  Because of the quickie elections, employers will have less time to respond to organizing campaigns.  Employers will have a short amount of time to educate employees about their views on unionization and additionally limited time to review and determine their legal positions on the elections.  Calling it “a seismic shift in Board law and procedures,” Schaumber explains that the proposals will “eviscerate employers’ chance to respond” and “employees will only hear one side of the story.” 

What You Can Do

The Board is accepting comments on its proposed rules through August 22, 2011.  Your comments can be submitted through regulations.gov.  In addition to commenting on these proposals, one strategy is for employers to be proactive regarding unions.  If the amendments are accepted, employers will clearly be facing an uphill battle when elections occur.  As a result, employers should educate employees about unionization as soon as they are aware of the potential of any election.