The National Labor Relations Board (“NLRB” or the “Board”) on November 30, 2011, voted two-to-one to approve a resolution to amend procedures that govern the NLRB’s conduct of certification elections. The amendments are designed to limit the time between the filing of a certification petition and the conduct of an NLRB secret ballot election. The resolution called for a final rule to be drafted and subject to approval by the Board. Board Chairman Mark Pearce and another former union lawyer now serving on the Board, Craig Becker, have been reported to want adoption of a final rule before Becker’s term expires at year’s end. Expiration of Becker’s term will leave the Board with only two members and lacking a quorum.
The resolution adopted by the Board contained six amendments to Board procedures, all of which are aimed at limiting the time employers and employees have to communicate among themselves regarding the prospect of a union in the workplace. The amendments would give NLRB hearing officers authority to limit evidence and issues presented in pre-election hearings and also to decide whether to deny parties the opportunity to file briefs. The amendments also would eliminate the right to seek Board review of pre-election rulings and allow an election to proceed despite the existence of significant issues relating to appropriateness of units and voter eligibility. In addition, the proposed amendments would narrow opportunities for appeal of issues relating to the election process.
The proposal approved by the Board excluded other significant changes to Board procedures which had been included in a proposed rule issued by the Board on June 22, 2011. Among the proposed amendments excluded from the resolution adopted by the Board on November 30 are provisions for electronic filing of petitions, a requirement that hearings be set for seven days after service of the notice of hearing, a requirement of the statement of position filing, inclusion of email addresses and phone numbers in the voter list, and a change of the period for filing the voter list from seven to two work days.
As further explained in another blog post, the effect of the NLRB’s proposal would be significant. By shortening the time between petition and election, the Board’s proposal would reduce the time employers and employees have to communicate among themselves regarding union issues, which would lead to an increase in organized labor’s election win rate. As a result, employers should consider proactive measures to prepare for a higher risk of organizing, including regular supervisor training in labor relations and communications to employees regarding how a union in a workplace can affect them. Effective communications with employees on labor relations can be accomplished through meetings with employees, letters and flyers, and the employer’s own notice postings, all of which should be considered by employers.
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