LABOR BOARD MAKES END RUN AROUND CONGRESS BY APPROVING NEW RULES FOR UNION ELECTIONS

In a significant win for organized labor, the National Labor Relations Board (“NLRB”) approved sweeping new rules that will speed the process for union elections in the workplace.

The rules, which take effect April 30, 2012, will simplify election procedures and likely reduce legal delays that can hold up union elections after employees at a work site gather enough signatures to form a union.  Most elections currently are held 45 to 60 days after a union gathers enough signatures to file a petition. These new rules will substantially reduce the time for holding a union election.  As a result of these new procedures, unions are poised to hold more elections and attain the right to conduct the election more quickly thereby increasing the likelihood that workplaces will become unionized.

This development is particularly significant because, in many ways, it accomplishes the same goals as the much-publicized “card-check” effort that unions had looked to President Obama to shepherd through Congress.  The card-check bill sought to make elections to unionize easier to attain by easing the process of gathering enough signatures.  That bill, however, sought to alter the process by changing the National Labor Relations Act -- the statute that governs union elections -- rather than just changing the regulations as the new rules do.

The NLRB’s new rules make an end run around Congress’ power to legislate in the area of labor-management relations.   They likely will achieve the result underlying the card-check bill, i.e, making it easier for employees quickly to hold an elections to unionize, but by different means. 

The new rules amend the existing election procedures by:

• Limiting pre-election hearings to matters that are relevant to “question[s] concerning representation.” Thus, a hearing officer no longer must permit the introduction of evidence relevant only to disputes concerning the eligibility and inclusion of individuals in a proposed bargaining unit.  As a consequence of this new procedure, employers will not have a complete list of employees who are eligible to vote until the election takes place.
• Consolidating the appeals process for Board review of pre-election issues and issues concerning the conduct of the election into a single post-election procedure. This consolidation process will also put to an end the practice of delaying elections while pre-election issues can be reviewed.  The elimination of pre-hearing procedures will substantially shorten the time period between the filing of a union election petition and the election and, in so doing, will shorten the time that employers have to attempt to influence the election.
• Narrowing the circumstances in which an appeal to the NLRB might be granted.  When the new rule becomes effective, special appeals will only be granted in “extraordinary circumstances.” Providing the NLRB with greater discretion to decide appeals to the election for pre-election or post-election issues.

As a result of the new rules, employers seeking to stay union free will now – more than ever -- need to act quickly and stay well within legal bounds in any efforts concerning union election matters.