NLRB Modifies Union Election Rules, With Dissent

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By Mark Wilson, Esq. on December 18, 2014 11:23 AM

Just in time for the new year, the National Labor Relations Board has announced changes to its representation case procedures. That's just a fancy, lawyer-talkin' way of referring to union elections conducted by the NLRB at the union's or employer's request.

The thrust of the new rules is to streamline the election process by making it easier, faster, and by reserving collateral issues for after the election. The point is just to get the election to happen without delay.

Electronic Filing

The future is here -- today! Mercifully, parties will be able to file election petitions electronically and the NLRB will be able to respond electronically. No more pushing paper around.

No Election Delays

Currently, elections are delayed 25 to 30 days to allow time for pre-election review by an NLRB regional director. Under the new rules, there will be no automatic stay of the election.

According to San Francisco State University professor John Logan, businesses have gone full jeremiad on this rule change, calling them "ambush elections" that are unfair to employers. But this concern is misplaced. "While the NLRB's new rules will address the most egregious delaying practices, they will not prevent employers from communicating their anti-union message to workers and will likely make scant difference to the balance of power in certification campaigns," Logan wrote in The Hill.

Forbes agrees, saying that "employers must focus on year-round anti-union avoidance programs, rather than rely on anti-union campaigns that begin after the filing of a representation petition."

Issue-Spotting

If there's a dispute about the union election petition, the parties will now have to identify their issues before the election. This will be limited to "only those issues that are necessary to determine whether it is appropriate to conduct an election." Other issues will be reserved for after the election.

Dissent

Yup, there's a dissent to the new rules published in the Federal Register. Two members of the NLRB said that the "election now, hearing later" approach advocated by the new rules contravenes the National Labor Relations Act.

It also "curtails the right of employers, unions and employees to engage in protected speech" -- by which they mean the ability of employers to conduct anti-union campaigns, though as we pointed out earlier, that's not a realistic concern, as employers have plenty of time to mount anti-union campaigns both before the election and year-round.

The new rules are set to take effect April 14, 2015 -- just in time for Tax Day.

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