The National Labor Relations Board (the “Board”) recently proposed a rule which would shorten election times, giving employers less time to talk to their employees about the pros and cons of unionization. These proposed “quickie” elections would greatly benefit unions, who already won 67.6% of elections in 2010. Winning two out of every three elections hardly demonstrates a need to revamp existing elections rules to favor unions. However, the Democratic Members of the Board seem to disagree.
The Specifics of the Proposed Rules
The Board proposes the new elections would happen within 10 to 21 days of a party filing an election petition. The new rules would limit the amount of litigation which could take place before the election. Any pre-election hearing would happen seven days after the filing of a petition. (The current schedule is at least 10 days.) At that time, the employer would be required to file a Statement of Position which would outline all their legal objections to the election. If the employer did not include an objection, it would be forever waived. This puts the employer in a difficult position, as it would be very difficult for an employer to effectively evaluate its legal position and all legal issues in only seven days.
In addition, the new rules would make communication between unions and employees easier. Employers would be required to provide the union with a list of all eligible voters within two days of the election date being scheduled. Currently, the employer has 7 days to produce this list. This list will now have to include the employee’s phone numbers and e-mail addresses. This allows both the union and the Board to contact employees more easily. The Board also wants to allow for more electronic filing of documentation, including allowing employees to electronically sign union authorization cards. This seems like an end run around the Democrat’s failed attempt to pass the Employee Free Choice Act.
The NLRB’s Reasoning
According to the Board, the new rules would streamline the election process and limit litigation before the election takes place. The Board claims the current system results in lengthy election processes and prolongs conflict in the workplace. Currently, the average union election happens within 31 days from the request for an election. In fact, 95% of elections take place within eight weeks. This is hardly the drawn-out process the Board makes it out to be.
Unions claim these new rules are necessary to balance the unequal footing employers currently have in the time leading up to an election. However, the union’s 67.6% win rate does not show a bias in favor of employers. While the new rules would eliminate most pre-election litigation, it may just delay the litigation until after the election, making the overall timeline just as long if not longer.
These proposed rules are obviously designed to benefit unions. Unions always strive to begin unionizing employees long before the employer has any idea what is happening. Often, when an employer receives a request for an election, that is the first time it is hearing that its employees are attempting to unionize. The ensuing time period between the petition and the election may be the only time employers get to discuss the pros and cons of unionization with their employees. In addition, during that time, employers need to hire counsel and assess their legal positions. If this time period is shortened, it decreases the time employers have to fight back and the time the employees need to hear the other side of the unionization story.
How Will This Affect the Employer?
If this rule is passed, employers will need to increase their efforts to educate their employees on the benefits of remaining union-free – something employers should already be doing but which is often missed during hard economic times. Employers will also need to spend more time training their supervisors on what they legally can and cannot say about unions. Even if the rule is not passed, we recommend managers have conversations about the benefits of remaining union-free with their employees on at least a monthly basis. This way, when a union does approach the employees, they already formed an opinion.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
