by Lauren E.M. Russell
April 7 marks the end of the comment period for proposed rules from the National Labor Relations Board (NLRB) that would shorten the time needed to hold union representation elections.
This latest effort is the second time the NLRB has broached the subject of what foes call “quickie elections.” The first set of rules was proposed in June 2011 but was struck down by a federal court on technical grounds because of the way the rules were adopted.
The latest version is substantively identical to the old rules, which were modified during the comment process back in 2011. The NLRB has scheduled a meeting for April 10-11 to allow members of the public to present their views on the proposal.
The purpose of the rules is to streamline the union election process and put off legal challenges until after an election has occurred. From the NLRB’s position, the new rules would eliminate stall tactics and unnecessary litigation. But from an employer’s perspective, legal challenges are much more difficult when a union already has a firm foothold in your business. If the new rules are finalized, employers can expect:
- Electronic filing of election petitions and related documents;
- A shortened time period (only weeks) between the petition and the election; and
- Delayed legal challenges after the election process is complete.
Also, employers would be required to provide a “Statement of Position” on a variety of legal issues, and issues not raised would be waived in any NLRB hearing challenging the election process. Unions also would be allowed access to employees’ names, addresses, phone numbers, and e-mail addresses earlier in the process.
If the new rules go into effect, they will hinder employers’ ability to undertake informational campaigns to fully inform employees about the implications of unionization. They also would limit employers’ ability to challenge issues that directly affect union elections (e.g., which employees are eligible to vote). Issues could be challenged only after an election, possibly necessitating a second election.
Lauren E.M. Russell is an attorney with Young Conaway Stargatt & Taylor, LLP, in Wilmington, Delaware, and an editor of Delaware Employment Law Letter. You can reach her at lrussell@ycst.com.