NLRB Again Flex’s Its Muscle

June 25, 2011

While the passage of the Employee Free Choice Act is seemingly dead, the National Labor Relations Board (NLRB) is still seeking to implement parts of the Act through administrative fiat. On June 21, the NLRB proposed changes to its existing rules governing union elections. If implemented, the new rules would significantly restrict an employer’s ability to successfully stage its own campaign in opposition to a union’s organizing efforts. Specifically, the new proposed rules include the following requirements:

• Potentially cutting down the time that a representation election is held from 56 days to only about 26 days. Typically, the more time employees have to study the issues, the less likely they are to vote for a union.
• Employers must provide the NLRB and unions more information about voters. The proposed rule would require employers to provide information on its employees’ phone numbers, email addresses, job classifications, work location and shift. The current rules only provide that employers must give out home addresses. Under the proposed rules, unions will have much easier access to employees.
• Employers will no longer be entitled to a hearing to determine who votes. Under current rules, the parties have a right to a pre-election hearing to determine the voting unit. The NLRB’s proposal, challenges to voters would (most of the time) be challenged at the polls and then litigated afterward. This could potentially discourage voter turnout, particularly among those who tend to side with the company.

There is a 60-day comment period for these proposed changes, followed by agency review and consideration, before the rules are finalized and implemented. If passed, the rules are subject to court review. All of these potential changes mean that it is more important than ever for non-union employers to remain vigilant in their efforts to promote preventive labor relations in advance of union organizing efforts.