A new rule by the National Labor Relations Board (NLRB) will make it more difficult for employers, especially small businesses, to mount timely anti-union initiatives when attempts are being made by unions to organize workers.
In December 2014, the NLRB adopted a final rule that amends its representation-case procedures that, according to the NLRB, is designed to "modernize and streamline" the process for resolving representation disputes. The new rule, passed narrowly (by a 3-to-2 margin) by the Board, will take effect April 14, 2015.
In publicizing the new rule, Board Chairman Mark Gaston Pierce, who voted in favor of the rule, said, "I am heartened that the Board has chosen to enact amendments that will modernize the representation case process and fulfill the promise of the National Labor Relations Board. Simplifying and streamlining the process with result in improvements for all parties."
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In detail, according to the NLRB, the final rule is designed to: "(P)rovide for electronic filing and transmission of election petitions and other documents; ensure that employees, employers and unions receive timely information they need to understand and participate in the representation case process; eliminate or reduce unnecessary litigation; adopt best practices and uniform procedures across regions; require that additional contact information be included in voter lists; and allow parties to consolidate all election-related appeals to the Board in a single appeals process."
In effect, the new rule will shorten the time between when an election is ordered and when the election itself occurs, eliminating a previous 25-day waiting period. It also seeks to reduce litigation that can be used to stall elections, and will require employers to furnish union organizers with e-mail addresses and phone numbers of workers.
According to an article in Forbes (December 15, 2014), the real impact of the rule is to deny employers an adequate opportunity to mount anti-union campaigns prior to employee voting. The article added that, given the expedited election process, employers must now focus on year-round anti-union programs, rather than rely on individual anti-union campaigns that begin after the filing of a representation petition.
In sum, according to Alan I. Model and Jason J. Silver, attorneys with Littler Mendelson P.C., it will be easier for unions to organize unrepresented employees, because a shorter period of time between a union's filing of a representation petition and the holding of an election will make it more difficult for employers to present their arguments against union representation. The attorneys added that the new rule "significantly tilts the NLRB's election procedures in favor of unions."
According to Karen Harned, executive director of the Small Business Legal Center for the National Federation of Business (NFIB), the union election process currently takes an average of 38 days, allowing enough time for unions to make their case, and for employers to make theirs, after which employees have the information they need to make informed decisions.
The new rule will shorten the election cycle to as little as 10 to 21 days. "Unions favor quicker elections so that they may communicate their messages to employees without the employer's knowledge before filing an election petition, and then limit the time the employer has to communicate its message to employees and prepare objections to the petition," said Harned.
When the NLRB last proposed this rule in 2011, NFIB sued to stop the proposal, and a federal court threw out the rule. "But, despite a federal court throwing the previous version of this ambush election rule out, the NLRB has decided to create policy for the sole purpose of holding unionization elections at lightning speed, while reducing employees' chances to make informed decisions about the issues," said Harned.
The new rule will be particularly hard on small businesses. "Unlike their larger counterparts, small businesses have unique needs," said Harned. "They do not employ in-house counsel, and they do not possess the resources larger firms do, leaving them to decipher complicated labor laws on their own. The NLRB is intended to be an advocate for employees and employers. But, in this last round of rulemaking, the Board has proven that its only intention is to make unionization easier. It is clear that the NLRB has no interest in serving as a neutral arbiter between employer and employee."
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