NLRB Amends Union Election Procedures — Speeds up Elections

December 23, 2011

In a win for organized labor, the National Labor Relations Board on December 21, 2011 approved sweeping new rules that would speed the pace of union elections, possibly making it easier for unions to gain members at companies that have long rebuffed them.

Business groups quickly denounced the move, saying it limits the time that employers have to educate workers about the impact of joining a union. The U.S. Chamber of Commerce and other business groups have already filed a federal lawsuit challenging the rules.

The rules, which take effect April 30, 2012 simplify procedures and reduce legal delays that can hold up union elections after employees at a work place gather enough signatures to form a union.
Here are some of the changes to the Act:

Hearing officers presiding over pre-election hearings will have discretion over the filing of post-hearing briefs, including the subjects to be addressed and the time for filing.

All appeals of the regional director's decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.

Eliminates the current recommendation that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election, in order to give the Board an opportunity to rule on a pre-election request for review.

Unions say the old rules allowed companies to file frivolous appeals, stalling elections for months or years. The new rules could help unions make inroads at businesses like Target and Wal-Mart, which have successfully resisted union organizing for years.

But business groups claim the new plan allows "ambush" elections that don't give company managers enough time to respond.

"This decision erodes employers' free speech and due process rights, and opens the door to rushed elections that will deny employees access to critical information and time to consider the issues at hand prior to entering the voting booth," said Katherine Lugar, executive vice president for public affairs at the Retail Industry leaders Association.

Most union elections currently take place between 45 to 60 days after a union gathers enough signatures to file a petition. The new rules could shorten that time by several weeks, depending on the situation.

Many employers use the time leading up to an election to talk to workers about the cost and impact of joining a union. But union officials claim the lag time is often used to pressure or intimidate workers against forming a union.

The rule was approved by the board's two Democratic members. Its lone Republican, Brian Hayes, has not yet cast his vote, but he is expected to cast a dissenting opinion sometime before the rule takes effect.

Hayes is so strongly opposed to the plan that he threatened to quit the commission last month, claiming its Democratic members were ignoring longstanding procedures in their haste to finish the rules.

The final rules were scaled back from an earlier version that would have required employers to hand over to union organizers a list of employees' e-mail addresses and phone numbers.

The board rushed to approve the new rules before the end of the year, when the term of Democratic member Craig Becker expires. The board currently has only three members instead of the usual five, and the Supreme Court has ruled that it can't issue any decisions with less than three members in place.

The lawsuit filed by business groups December 20, 2011 claims the board circumvented its own operating procedures to finalize this rule, and that the rule itself short-circuits safeguards meant to ensure fair elections.

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