NLRB proposes procedures for "quickie" union elections
Margaret Lockhart
Cooper & Kowalski
On June 21, 2011, the National Labor Relations Board proposed regulations that would shorten significantly the time between the filing of a petition for a union election and the election date, and provide more information to unions sooner after the petition is filed. The proposed regulations appear to be a response to the demise of the card check provisions of the Employee Free Choice Act (EFCA). Member Hayes, the Board's only Republican, objected to the proposed rule making, saying that there has been no showing that there is a need for more rapid elections. In fact, in 2010 the Board reduced the time period between filing a petition to an election to a median of 38 days.
The rules propose the following significant changes:
- Election petitions, election notices, and voter lists could be transmitted and filed electronically
- The Regional Director will schedule a pre-election hearing to begin seven days after a hearing notice is served and a post-election hearing 14 days after the ballots are tallied.
- The non-petitioning party will be required to produce a preliminary voter list by the opening of the pre-election hearing.
- Litigation of voter eligibility issues involving less than 20% of the bargaining unit will be deferred until after the election.
- The parties may seek review of all Regional Director's rulings in a single post-election request. The pre-election request for review will be eliminated.
- The Board will have discretion to deny review of post-election rulings, effectively permitting Regional Directors to make final decisions in most cases.
- The final voter list will be due two work days after the direction of election, must be produced in electronic form when possible, and will include phone numbers and available e-mail addresses
These proposed changes will reduce the time employers have less to communicate with employees so they can make informed decisions in the election. Having an employee list earlier and one that includes phone numbers and e-mail addresses will also make campaigning easier for unions
The Board is accepting comments on the proposed rules through August 22, 2011, and comments on the comments through September 6, 2011. The Board intends to hold a public hearing on the proposed rules on July 18-19 in Washington D.C. The proposed regulations and a fact sheet comparing current and proposed procedures are available at on the NLRB's website www.NLRB.gov.
By Margaret J. Lockhart, OSBA Certified Specialist in Labor and Employment Law, Cooper & Kowalski, LPA
