Sense of Déjà vu with NLRB’s Union Election Process Proposal | DCR Workforce Blog

Sense of Déjà vu with NLRB’s Union Election Process Proposal

NLRB LogoThe National Labor Relations Board (NLRB) has proposed new union election procedures. The proposed rule is open to public comment up till April 7, 2014 –and the final ruling   is expected to be issued before the end of the year.   Many feel that these changes will skew the election process to favor unions.

Similar rules proposed by the NLRB in 2011were struck down by a court of law; mainly because the Board lacked a quorum at the time. Now, all required members of the Board is in place and is pleased to bring back their proposed set of rules, claiming that the changes will facilitate the swift resolution of questions concerning representation, eliminate unnecessary litigation, and make it considerably easier for unions to organize employees and win elections. Close observation makes it apparent that they are not significantly different from the rules proposed in 2011; hence the sense of déjà vu.

Some salient features of the new proposal:

  • The recent amendments make it possible for election petitions to be filed electronically.
  • The new rules require an employer to furnish the NLRB with the list of every employee’s name and address along with phone number, email id, work location, shift, and classification.  This information must be provided within 2 days of the scheduling of the election by the Regional Director. Note that these lists must include agency-supplied contract workers, who also have the right to participate in union activities. Pre-election hearings must be heard within 7 days of the notice of an upcoming election is served.  If either side fails to present any issue in their detailed statement of position, they waive the right to do so in all future proceedings.
  •  Officers presiding over the hearing have the authority to limit the issues to be heard, taking away the ability of employers to litigate on issues important to them, prior to an election.
  • Board officers can also deny an employer the ability to file a post-hearing brief, seek a Board review of a Regional Director’s ruling, or take other measures that could shorten the time between the petition and election.
  • Employer challenges regarding voter-eligibility or other issues will be deferred until after an election, eliminating litigation that could potentially delay election schedules.
  • Unions can take away the employer’s bargaining power by including some supervisors in the bargaining unit, so that employers cannot utilize them.

As would be expected, sides are being formed and groups are organizing to support or defeat this change.  Business organizations are concerned that this new proposal will make it difficult for employers to make a meaningful presentation of their position and also make it difficult for employees to make informed choices. They argue that the changes will reduce the current time between announcement of an upcoming election and the actual vote will be less than 25 days.   Union supporters believe that these changes will eliminate the extensive litigation aimed solely at stalling an election.

While we all wait to see the outcome of this proposal, employers who wish to avoid unionization should use this period to correct non-competitive workplace conditions such as:

  • Uncompetitive wages and benefits
  • Violations of wage and hour mandates
  • Policies against employees’ collective bargaining efforts through solicitation/distribution, electronic communications, and social media
  • Unlawful responses to union campaigns

Last year, unions represented 11.3% of U.S. workers, down from about 20% in 1983. We may be about to find out if that decline is due – at least in part – to attempts by employers to delay unionizations actions and intimidate workers.   We welcome your thoughts.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.