NLRB Proposes Quicker, Easier Path for Unionization Elections

The proposed amendments are designed to fix flaws in the Board’s current procedures that:

• build in unnecessary delays
• encourage wasteful litigation
• reflect old-fashioned communication technologies
• allow haphazard case-processing, by not adopting best practices.

If adopted, NLRB says the proposed amendments would:

• Allow for electronic filing 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.
• Standardize timeframes for parties to resolve or litigate issues before and after elections.
• Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
• Defer litigation of most voter eligibility issues until after the election.
• Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
• Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
• Make Board review of post-election decisions discretionary rather than mandatory.

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NLRB says the proposed rule changes involve only the mechanics of the representation-case procedures created by the Board itself. They do not involve the other, lawful method of achieving union representation, voluntary recognition through card-check or other means.

Nor do the proposed changes regulate how election campaigns are run by unions or employers, where or how elections are conducted, what bargaining units are appropriate, or any of the other substantive election issues that the Board regulates, says NLRB.

Finally, the proposed changes do not establish inflexible time deadlines or mandate that elections be conducted a set number of days after the filing of a petition.

It is fair to predict, says NLRB chairman Wilma B. Liebman, that the new proposals will be controversial.

The following table provides a side-by-side comparison of current and proposed procedures:

Current procedures	Proposed procedures
Parties or the Board cannot electronically file or transmit important representation case documents, including election petitions.	Election petitions, election notices, and voter lists could be transmitted electronically.  NLRB regional offices could deliver notices and documents electronically rather than by mail, and could directly notify employees by email, when addresses are available.
The parties receive little compliance assistance.	Along with a copy of the petition, parties would receive a description of NLRB representation case procedures, with rights and obligations, as well as a ‘statement of position form’, which will help parties to identify the issues they may want to raise at the pre-election hearing.  The Regional Director may permit parties to complete the form at the hearing with the assistance of the hearing officer.
The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region.	The Regional Director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.)
In contrast to federal court rules, the Board’s current procedures have no mechanism for quickly identifying what issues are in dispute to avoid wasteful litigation and encourage agreements.	The parties would be required to state their positions no later than the start of the hearing, before any other evidence is accepted.  The proposed amendments would ensure that hearings are limited to resolving genuine disputes.
Encourages pre-election litigation over voter-eligibility issues that need not be resolved in order to determine if an election is necessary and that may not affect the outcome of the election and thus ultimately may not need to be resolved.	The parties could choose not to raise such issues at the pre-election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20 per cent of the bargaining unit would be deferred until after the election.
A list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election.	The non-petitioning party would produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing.
The parties may request Board review of the Regional Director’s pre-election rulings before the election, and they waive their right to seek review if they do not do so.	The parties would be permitted to seek review of all Regional Director rulings through a single, post-election request.
Elections routinely are delayed 25-30 days to allow parties to seek Board review of Regional Director rulings even though such requests are rarely filed, even more rarely granted, and almost never result in a stay of the election.	The pre-election request for review would be eliminated, along with the unnecessary delay.
The Board itself is required to decide most post-election disputes.	The Board would have discretion to deny review of post-election rulings — the same discretion now exercised concerning pre-election rulings — permitting career Regional Directors to make prompt and final decision in most cases.
The final voter list available to all parties contains only names and home addresses, which does not permit all parties to utilize modern technology to communicate with voters.	Phone numbers and email addresses (when available) would be included on the final voter list.
Deadlines are based on outdated technology, for example, allowing seven days after the direction of election for the employer to prepare and file a paper list of eligible voters.	The final voter list would be produced in electronic form when possible, and the deadline would be shortened to two work days.
Representation case procedures are described in three different parts of the regulations, leading to redundancy and potential confusion.	Representation case procedures are consolidated into a single part of the regulations.

What to Do?

Of course, these are proposed regulations, not yet in force. But that doesn’t mean you should do nothing. Most employers would do well to conduct a review of their unionization status—How likely a target are you for unionization? What might union organizers promise that you are not currently delivering? What steps might you take to make remaining union-free more attractive to your employees? What kind of training might be good for your managers and supervisors?

What’s the best way to find out what problems are lurking in the trenches? Regular audits are really the only way to make sure that managers and supervisors in every corner of your headquarters and every outlying facility are operating within policy guidelines.

If you’re not auditing, someone’s probably violating a policy right now. The rub is that for most HR managers, it’s hard to get started auditing—where do you begin?

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