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NLRB Proposal: Amend Procedures for Representation Cases

Yesterday, the National Labor Relations Board (“NLRB”) announced that it is reviving a proposed rule to change its procedures governing union-representation cases.

Yesterday, the National Labor Relations Board (“NLRB”) announced that it is reviving a proposed rule to change its procedures governing union-representation cases.

The current process for a union election requires at least 30 percent of a company’s employees to file a petition with the NLRB showing interest in forming a union.  The employer and union then form an agreement for the election procedures, or the NLRB Regional Director orders the election and establishes conditions for the process.  Thereafter, the election is held typically within 30 days of the Director’s order, but the election may be postponed if either the employer or the union files a charge alleging the other party engaged in conduct that would interfere with the employee’s free choice in the election.

The NLRB intends the proposed amendments to serve as a mechanism for streamlining the union-election process and reducing election-related litigation.  Under the amended procedure, employers would have to delay legal challenges to the voting process, provide the union with its employees’ e-mail addresses and telephone numbers, and allow electronic filing of election materials.  The parties would also be under tighter deadlines for pre-election procedures.

Legal experts, including former NLRB Member Brian Hayes, opine that the election time period – from the date when workers file the petition to the actual voting date – would be significantly shortened as a result of these changes, thus giving rise to the terms “ambush” and “quickie” elections.  That shortened time period could have a significant impact on employers, as it would give them less time to inform their employees of the disadvantages of belonging to a union and to seek to persuade them to remain non-unionized.

The proposed changes resurrect the identical amendments the NLRB sought to implement in June 2011.  At that time, the NLRB published a notice of proposed rulemaking (“NPRM”), considered the input provided in response to the NPRM, and adopted a final rule.  Thereafter, in 2012, the District Court for the District of Columbia held the final rule invalid, indicating that it had been adopted without the requisite valid quorum.  Although the NLRB appealed the ruling, it later entered into a joint stipulation dismissing the appeal on December 9, 2013.

In connection with the current NPRM, the NLRB invites the public to comment on the proposed changes by April 7, 2014.  The NLRB will hold a public hearing to discuss the proposed amendments during that week.  Employers should stay tuned for new developments as the proposed rule, if adopted, will require employers to make significant changes to the way in which they approach elections.  The labor and employment attorneys at Connell Foley welcome the opportunity to counsel employers regarding these NLRB changes and any other NLRB matter.

  • Partner

    Michael Shadiack is the Chair of Connell Foley’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...

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