The NEW Union Election Process: How it will place employers at a distinct disadvantage in union representation campaigns.

In December 2011, the National Labor Relations Board (“NLRB”) issued a rule implementing sweeping changes to the Union election process. The United States Chamber of Commerce has already filed suit to enjoin the NLRB from enforcing the rule (Chamber of Commerce v. NLRB, D.D.C., No. 1:11-cv-02262, complaint filed 12/20/11). The case likely will not be resolved until the Spring of 2012. Unless enjoined by the district court, these changes are scheduled to take effect on April 30, 2012 and would place employers at a distinct disadvantage in union representation campaigns in three important respects: limiting participation, limiting opportunities to seek review, and speeding the election process.

Current NLRB Election Procedures

In many cases, an employer has little (if any) reason to believe that its employees are attempting to unionize until served with an election petition and showing of interest. Then, in most cases, the Regional Director for the NLRB will set an evidentiary pre-election hearing within a matter of days (typically seven) to resolve any disputed issues about the proposed unit of employees seeking to be represented by the union. The United States Supreme Court has recognized that “the initiative in selecting an appropriate unit resides with the employees.” Am. Hosp. Assoc. v. NLRB, 499 U.S. 606, 608 (1991). The employees’ selected unit is given great deference because the Regional Director examines it to ensure it is only one of many possible appropriate units, not the most appropriate unit. Id. Employers may choose to present evidence that the proposed unit is inappropriate, or present evidence suggesting an alternate unit.

After the hearing, the parties may submit briefs further articulating or clarifying their positions.The Regional Director then determines whether to direct an election and, if so, in what unit.The parties have a right to appeal this determination to the NLRB, which may hear the appeal on a discretionary basis. To allow time for this appeal, the NLRB rules require a 25 day waiting period before conducting the election. During these 25 days, employers typically distribute information to the employees in the proposed unit to persuade them from voting in favor of the union. After the election, the employer and the union have an opportunity to raise any election issues to the Regional Director and appeal the resolution of those issues to the NLRB.

Limiting Participation and Opportunities for Review

As noted above, in many union representation campaigns, the union and the proposed unit of employees have had ample time to consider and reconsider any perceived representation issues. The employer, by contrast, is often left in the dark until the election petition is filed, and must quickly consider any issues and raise them at the hearing or in the post-hearing brief.

The new NLRB rule amendments make this process more difficult on the employer for a number of reasons. First, the amendments grant the hearing officers the authority to limit or exclude evidence that does not pertain to a question concerning representation. Second, the hearing officer may also prohibit (or significantly curtail) the right to file a post-hearing brief, which employers often use to emphasize and clarify their positions based on the hearing testimony. Third, the employer is stripped of its ability to challenge any erroneous rulings. The amendments expressly eliminate the parties’ ability to seek NLRB review of the Regional Director’s direction of election until after the election has taken place. Therefore, these amendments could place the employer in the untenable position of asking the NLRB to “undo” an election result based on a pre-hearing mistake that the employer did not have the ability to challenge. Fourth, the employer has no right to have its objections or challenges to the election itself (conduct during the election, counting ballots, etc.) reviewed by the NLRB; any such appeals are reviewed in the NLRB’s sole discretion only.

Significantly Speeding the Union Election Process

In addition to limiting the employer’s opportunities to participate in the election campaign, the amendments also limit the time an employer has to persuade employees to vote against the union. The amendments eliminate the 25 day waiting period after a direction of election. The amendments do not give guidance on when an election should be set. Therefore, the period between the Regional Director’s direction of election and the actual election (i.e., the employer’s opportunity to campaign) could be incredibly short and could vary greatly from region to region. This presents potential issues for employers who wish to persuade their employees against electing the union (particularly those employers who operate in more than one location).

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