NLRB Proposes Drastic Changes to Union Election Procedures

On June 21, 2011, the National Labor Relations Board (NLRB) announced its intent to exercise its rulemaking authority to propose significant changes to Board rules and regulations regarding pre- and post-election procedures in union representation cases. According to the Board’s announcement, the proposed changes are intended to “speed up” the election process and “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation.”

In fact, the changes will allow “quickie elections,” in which unions can covertly organize employees and demand an NLRB election on such a short timeframe that surprised employers may lack time in which to obtain assistance and lawfully inform their employees of the consequences of choosing union representation. In a related development, the U.S. Department of Labor (DOL) announced on June 20, 2011 proposed changes to its regulations that will (a) substantially expand the reporting obligations and scrutiny of lawyers and outside consultants who advise employers in union representational situations, and (b) discourage may law firms from continuing to offer those services.

The NLRB’s proposal includes:

• Permitting electronic filing and transmission of election petitions, notices and voter lists.
• Requiring a pre-election hearing to be held 7 days after a hearing notice is served, and a post-election hearing 14 days after ballots are counted.
• Requiring production of a preliminary voter list by the opening of the pre-election hearing as opposed to the current requirement to produce a voter list after an election is directed.
• Eliminating pre-election Board review of the Regional Director’s pre-election rulings and instead consolidating all election challenges into a post-election review process.
• Deferring litigation of voter eligibility issues involving less than 20% of the bargaining unit until after an election, even if such eligibility issues might render the election unnecessary or be outcome-determinative.
• Vesting the Board with discretionary authority to review post-election challenges or disputes, whereas the Board is currently required to review post-election disputes.
• Requiring the production of final voter lists in two days instead of seven days.
• Requiring the final voter list to include voters’ phone numbers and e-mail addresses, when available.

Although both the Board and DOL “proposals” are open to public comment, it is widely expected that soon after the 60-day comment periods, they will be adopted in much their current form. Employers who use the delay between the filing of a union election petition and an election to mount their own campaign to inform employees must change their practices. Wise employers will immediately develop ongoing educational programs and begin them before rather than after a union election petition.

For further information or assistance in filing comments with the DOL and NLRB, or assistance in crafting a preventative program, please contact the authors or any other member of the McGuireWoods Labor and Employment Group.