|
On June 22, the National Labor Relations Board published sweeping proposed regulations in the Federal Register aimed at implementing changes long-sought by unions, such as faster representation hearing deadlines and streamlined pre- and post-election procedures. In effect, these regulations, if implemented as proposed, will aid unions' organizational efforts while hampering businesses' efforts to mount effective anti-union representation campaigns.
Employers should note how these proposed regulations, depending on their final form, could impact their workplaces and take appropriate proactive and reactive measures.
Most union representation elections currently occur 45-60 days after a union seeking to represent a group of employees gathers enough potentially affected employee signatures to file an election petition with the NLRB. In 2008, according to the NLRB, the median amount of time it took from the filing of an election petition to representation election was 38 days, while the average was 57 days. During that time, many employers undertake a campaign to communicate to workers in the proposed bargaining unit why unionization would be detrimental to their interests. The unions often have had contact with employees for a number of months prior to filing the petition in an effort to secure signatures on authorization cards, which are required to support the election petition. Naturally, employers favor a longer campaign period in which to convey their message to their employees. While the proposed regulations do not set specific election deadlines, they could dramatically reduce that campaign time period by days or even weeks, depending on the circumstance.
If these proposed regulations are adopted by the NLRB and campaign time periods are dramatically reduced, proactive supervisor and rank and file union avoidance training will become a much more important tool in the toolbox of employers who seek to maintain merit shops.
Noteworthy Proposals
Among other proposed changes, the NLRB proposes the following revised procedures it states will "fix flaws" in current procedures that "build in unnecessary delays, allow wasteful litigation, and fail to take advantage of modern communication technologies:"
- Provide for the electronic filing of union representation election petitions, election notices and voter lists
- Require NLRB Regional Directors to set pre-election hearings to begin seven days after service of a hearing notice, absent special circumstances, and to hold post-election hearings 14 days after tallying election ballots, or as soon as practically possible
- Defer litigation of employee voter-eligibility issues concerning less than 20 percent of the proposed bargaining unit until after a representation election
- Eliminate pre-representation election appeals to the NLRB of Regional Director rulings
- Require employers to provide preliminary employer voter lists (including names, work locations, shifts and classifications) by the opening of the pre-election hearing
- Require employers to provide unions with final employee voter lists including telephone numbers and email addresses (when available to employers) within two days of a direction of election (a significant reduction from the current seven)
Status of Proposed Regulations
The public may now submit comments to the NLRB concerning the proposed regulations. The NLRB has scheduled a public hearing concerning the proposed regulations for July 18 (and 19, if needed). Additionally, the public may submit comments electronically through Regulations.gov or by mail to the NLRB's Washington, D.C. headquarters up to 60 days after June 22. The NLRB will review public comments received and submit its proposed final regulations to the Office of Management and Budget.
For More Information
If you have any questions about these proposed regulations or how they could impact your workplace, please contact your current legal advisor or a member of the Polsinelli Shughart PC Labor and Employment Law practice group.
Contacts:
|
About Polsinelli Shughart PC
With more than 530 attorneys, Polsinelli Shughart PC is a national law firm that is a recognized leader in the areas of business law, financial services, real estate and business litigation. Serving corporate, institutional and individual clients, Polsinelli Shughart is redefining the business of law by sharing ideas, goals and outcomes with its clients. The firm builds enduring relationships by creating value through legal services – with passion, ingenuity and a sense of urgency. The firm can be found online at www.polsinelli.com. |
