On Dec. 21, 2011, the two Democratic members of the National Labor Relations Board (NLRB) handed labor unions a Christmas present—a package of representation election rules changes the board described as necessary to reduce unnecessary litigation, but that business interests decried as giving unions an unfair advantage by shortening the election time frame.
The action was not unexpected, as the board had voted 2-1 in November to authorize drafting of the rules changes, seeking to mitigate political opposition by moving forward with a package that was less onerous to management than a proposal unveiled six months earlier. Nonetheless, it provoked predictable outrage from Republicans on Capitol Hill and a legal challenge from the U.S. Chamber of Commerce.
In June 2011, the NLRB proposed a sweeping set of election rules changes, including provisions that would have required employers to provide unions with telephone numbers and email addresses of employees within two days of an election petition being filed. Under the old rules, employers have seven days and need only provide names and home addresses of employees. Another proposed change called for electronic filing of election petitions.
The net effect is to significantly shorten the time between the filing of an election petition and the election date in contested elections. The time frame is crucial, management attorneys say, because companies are often caught unaware by an election petition and need time to prepare employee communications that present the argument for staying nonunion.
“Academicians have found in study after study that the more time between the filing of a petition and the conducting of the election, the better chance the employer has,” Walters says, adding that even under the old rules, unions won two-thirds of the elections held in recent years.