Yesterday, the National Labor Relations Board (“NLRB” or “Board”) announced that by a 3-2 majority it has decided to reissue proposed amendments to its rules and regulations governing representation-case procedures. These proposed rules impact the representation case procedure and significantly expedite the process by which employees select union representatives. After a 60-day comment period, final regulations will be issued.
Background
The regulations proposed by the NLRB today are nearly identical to the substantial changes that the Board proposed back in June 2011 (hereafter “2011 election proposal”). As we previously reported, the Board abandoned many of the more “controversial” changes in its December 2011 Final Rule after significant opposition from business groups. Nevertheless, even the “pared-down” Final Rule faced a mountain of litigation after it was passed.
In May 2012, a federal judge in D.C. then found the rules adopted in December 2011 invalid because the Board did not have the 3-member “quorum” required by the U.S. Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). Although the Board announced thereafter that it accepted the federal court’s decision, the new proposed amendments show that the Board has clearly not abandoned its desire to revamp election procedures.
NLRB Re-Proposes Sweeping Rule Changes
Rather than reissuing the “pared down” changes from the Final Rule adopted in December 2011, the Board has proposed reverting back to the more sweeping changes that were contained in the original 2011 election proposal. In announcing the reissuance of the rules, NLRB Chairman Mark Gaston Pearce stated: “I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment.”
The stated purpose of the proposed regulations is to make the representation case process more streamlined and efficient. Pursuant to that goal, here is a list of several changes contained in the proposed rules:
- Shorten Deadline for Producing Eligibility List—The proposed amendments change the deadline for production of the eligibility list from 7 days to 2 days, absent agreement of the parties to the contrary or extraordinary circumstances.
- Shorten Deadline for Election Hearing—The proposed amendments provide that, absent special circumstances, the regional director would set the hearing to begin 7 days after service of the notice of hearing.
- Employee Email Addresses Disclosed to the Union—The proposed amendments also require employers to disclose employee email addresses and phone numbers in an expanded “Excelsior” list that will be transmitted electronically to the union.
- Postpone Most Election Issues until After the Election—The proposed amendments provide that if the regional director finds at any time that the only issues remaining in dispute concern the eligibility or inclusion of employees who would constitute less than 20% of the unit if they were found to be eligible to vote, the regional director must direct that those individuals be permitted to vote subject to challenge.
The most significant of these changes is the one moving the determination of most bargaining unit and voter eligibility issues to after the election. The NLRB argues this change is needed because most of the election issues are resolved by the actual election results.
The Board does not propose any specific timeframe for holding an election after an election petition is filed. Indeed, in response to criticism from the dissent, the majority makes clear that “the proposed rules themselves do not compel any particular number of days or time periods for holding or not holding elections.” Nevertheless, in his dissent to the 2011 election proposal, then-Member Brian Hayes suggested that the intent of the regulations is to reduce the typical campaign period from its current target of 42 days to 21 days or less.
Bottom Line
The NLRB’s proposed regulations will fundamentally change the representation case process and should make it much easier for unions to organize new groups of employees. As with the 2011 rules, business groups likely will rally support to block or at least significantly restrict the proposed regulations. Advocates for labor, on the other hand, will be pushing for complete passage.
It is impossible to predict where this battle will end up, but the reissuance of the more radical June 2011 proposed regulations suggests that the Board is not giving up its pursuit to fundamentally change election procedures. Employers with concerns about union organizing should watch this process carefully and consider how the proposed regulations would change that process.
To view the new proposed regulations, click here.