On February 4, 2013, the National Labor Relations Board (“NLRB”) announced it would reintroduce procedures designed to speed up the union certification processes. The proposed amendments are similar to those first proposed in June 2011, referred to by some as the “ambush election rules”. The June 2011 rules were successfully challenged in District Court for having been adopted without a validly constituted quorum and invalidated. The Board’s appeal of that ruling was dismissed, pursuant to a joint stipulation, on December 9, 2013.
The NLRB indicates “the proposals are intended to enable the Board to more effectively administer the National Labor Relations Act.” Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.
Board Chairman Pearce said: “The Board is unanimous in its support for effective representation case procedures. I am pleased that all Members share a commitment to constructive dialogue, and we all agree that important issues are involved in this proposed rulemaking. With a Senate-confirmed five-member Board, I feel it is important for the Board to fully consider public comment on these proposed amendments, along with the comments we previously received in 2011. These amendments would modernize the representation case process and fulfill the promise of the National Labor Relations Act.” Notably, the prior proposal resulted in over 65,000 public comments. Pearce stressed that the Board was reviewing the proposed changes with an open mind: “No final decisions have been made. We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered.”
Many business leaders and labor experts identify the concerning potential of an election in only 10 days, before employees would have a sufficient opportunity to learn about the importance of their vote and their choice. Currently, NLRB data indicates the median number of days between a petition and a union election is 38 days. Many are concerned that shortening this timetable would deprive workers the reasonable time required to understand and consider the implications that the election will have on their job.
The reforms the Board will propose would:
- allow for electronic filing and transmission of election petitions and other documents;
- ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
- streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
- include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
- consolidate all election-related appeals to the Board into a single post-election appeals process.
The shorter election period only emphasizes the need for employers to regularly consult with labor counsel to be prepared for any organizing campaign. Employers are encouraged to consult with labor counsel before the new procedures are adopted.