NLRB Renews Efforts to Change Union Elections, Comments Due April 7, 2014

Last week we reported that the National Labor Relations Board (NLRB) appeared to be backing away from its attempts to change union election rules. Now, however, the NLRB has re-issued its Notice of Proposed Rulemaking to change the rules governing union elections. 

The rules, first proposed in 2011, were struck down by the U.S. District Court for the District of Columbia because the NLRB did not have a valid quorum at the time. The court did not address the substance of the rules, and the door was left open for the NLRB to revisit the rules once it had a quorum. Now that the NLRB has a full slate of five members, it has approved the proposed rules by a 3 to 2 vote. 

Board Chairman Mark Gaston Pearce said the proposed amendments “are intended to improve the [election] process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union.”

The proposed rules would, among other things:

  • Permit electronic filing of petitions for elections and other filings,
  • Ensure that employees, unions, and employers exchange and receive information necessary for their participation and understanding of representation cases,
  • Facilitate agreements between the parties in representation cases by streamlining pre-election and post-election procedures,
  • Require the addition of employee telephone numbers and email addresses to voter (Excelsior) lists in representation elections, and
  • Require election appeals to be consolidated into a single process.

There has been substantial pushback on the proposed rules. Sen. Lamar Alexander (R-Tenn.) called the proposed rules an effort to permit “ambush elections,” stating, “Ambush elections are one more example of how the Obama National Labor Relations Board continues to be more of a union advocate than an umpire… .” Rep. George Miller (D-Calif.) said, on the other hand, “This common sense rule will reduce frivolous litigation, reduce delays in scheduling elections, streamline the appeals process, and strengthen the NLRB’s hearing procedures… .” Geoff Burr, Vice President of Government Affairs of the Associated Building and Contractors trade group countered, “Shortening the election period does nothing to ensure a fairer election and it is clearly not necessary to help the NLRB meet its self-imposed goal for election time frames . . . in addition, it denies employers their rights to free speech and employees the opportunity to make a fully informed decision.”

Interested parties may file comments on the proposed rules at http://www.regulations.gov. Comments must be received by April 7, 2014, and replies to comments must be filed by April 14, 2014. The NLRB will schedule public hearings sometime in April.