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Labor: NLRB’s union-friendly rules disconcerting for employers

Proposed rules give employers less time to oppose union organizing efforts, and call for quicker elections.

In late June 2011, the National Labor Relations Board (NLRB) proposed new rules that would increase employers’ burdens when responding to union organizing efforts. The comment period for these rules ends today, and rules will likely become effective later this year absent legal challenge.

What do the proposed new rules change?

  1. They significantly curtail employers’ ability to litigate voter eligibility issues before the election. The new rules would postpone litigation concerning which employees (e.g., forepersons and leads) are eligible to vote unless the disputed group involves 20 percent or more of the eligible voters. The resulting uncertainty disadvantages both employers (who wish to know whether to include such employees in confidential campaign meetings) and these quasi-supervisory employees, who will be forced to “guess” whether they may lawfully attend union meetings and freely campaign in the face of strict limitations placed on supervisory surveillance and pre-election statements. Because these employees’ actions will likely be attributed to their employers, the proposed rules place a high burden on employers to correctly educate forepersons and leads of their rights and obligations during the pre-election period.
  2. Mandate quick pre-election hearings. Currently, when pre-election hearings are needed to resolve voter eligibility disputes, the NLRB typically schedules them to occur within 14 days of the time the employer is notified that an election petition has been filed. In practice, NLRB regional directors often work with employers to postpone these hearings when conflicts exist. Under the proposed rules, however, such hearings “will,” “absent special circumstances,” take place within seven days of employers’ first notice that a petition has been filed. Accordingly, an employer who wishes to challenge the union’s proposed bargaining unit will now have only one week to: (a) retain counsel; (b) determine how the rules governing voter eligibility will apply to the election; (c) decide whether or not to challenge the union’s proposed bargaining unit; and (d) prepare its case.
  3. Accelerate and enhance the disclosure of certain employee information. After a union election has been scheduled, employers are currently required to disclose only the names and home addresses of eligible voters. Under the proposed rules, employers would also be required to disclose employee phone numbers and email addresses, where available, and to do so more promptly than the current schedule.
  4. Encourage faster elections. The delay in and decreased time for employers to challenge unions’ proposed bargaining units, as well as the accelerated timeline for employers to produce employee information, are all designed to decrease the time for elections to be held from the current six-week standard to roughly between two and three weeks.

What is the likely impact of these proposed rules?

Unsurprisingly, it is widely understood that the shorter the time frame between the filing of an election petition and the vote, the more likely it is that the union wins the election. By contrast, employers who have more time tend to educate their workers that union representatives often overpromise and fail to fully disclose disadvantages to joining a union during their stealth campaigns.

Can I influence the process?

Because these changes fall within the NLRB's rulemaking authority, the avenues for companies and Congress to oppose or modify these proposed rules are limited. In the meantime, comments may be registered through today, August 22, at www.regulations.gov, RIN number 3142-AA08.

Contributing Author

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David Gevertz

David Gevertz is a shareholder and vice chair of the Labor and Employment Department at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Atlanta). His practice...

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