NLRB Proposals Would Overhaul Union Election Rules in the Workplace

By Eric B. Meyer

The National Labor Relations Board (NLRB) has proposed amendments to its existing rules and regulations that will vastly change the way union-elections are conducted.

The NLRB spin on these amendments is that they will “reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.”

Is this a good thing or a bad thing for employers?

What the new rules would do

According to a press release from the NLRB, the new rules would create eight changes to the election process:

  1. Allow for electronic filing of election petitions and other documents.
  2. Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
  3. Standardize time frames for parties to resolve or litigate issues before and after elections.
  4. Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
  5. Defer litigation of most voter eligibility issues until after the election.
  6. 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.
  7. 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.
  8. Make Board review of post-election decisions discretionary rather than mandatory.

You can find even more details on the proposed amendments here.

One NLRB member not happy with changes

NLRB Board Member Brian Hayes dissented from the proposed rule making. He criticizes the Board majority’s as just kowtowing to organized labor, concerned that the intent to impose new election rules “tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress.”

And, if it ain’t broke, don’t fix it, says Member Hayes:

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The Board and General Counsel are consistently meeting their publicly-stated performance goals under the current representation election process, providing an expeditious and fair resolution to parties in the vast majority of cases, less than 10 percent of which involve contested preelection issues.”

Member Hayes also expressed concern that the majority was trying to railroad through the rule changes without providing adequate time for review and comment. He noted that the “last substantive rule making effort of comparable scale” was carefully reviewed and considered for over two years before it was passed.

“In truth,” Hayes added, “the ‘problem’ which my colleagues seek to address through these rules revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections.”

Your voice can still be heard

Public comments are invited on all aspects of the proposed rules and should be submitted within 60 days of publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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