On February 5, 2014, the National Labor Relations Board
("NLRB") proposed sweeping changes to current union
election procedures that would speed up the election process,
thereby making it easier for unions to win more elections. The
proposed rule changes are the same as those that were previously
proposed in June 2011 and discussed in our
June 29, 2011 Legal Alert. That proposal led to the adoption of
a final rule that incorporated only some of the provisions of the
original proposal, but that final rule was ultimately derailed by
litigation over procedural defects in the adoption of the rule.
(See our
May 15, 2012 Legal Alert for more information.) With the recent
controversy over recess appointments to the NLRB resolved and NLRB
now operating with a full, Senate-confirmed five-member complement,
the agency has resurrected the proposed rule changes. Not
surprisingly, the new proposal was supported by the three
Democratic members on the NLRB and was opposed by the two
Republican members.
Because the rules are in the form of a new proposal, they must be
submitted for public comment, as were the proposed changes in 2011.
That proposal garnered some 66,000 comments, which the NLRB claims
were evenly split between those in favor of the proposed changes
and those opposed. While inviting comments in response to the new
proposal, NLRB Chairman Pearce explained that interested parties do
not need to resubmit comments that were submitted in response to
the June 2011 proposed rules because the agency intends to consider
all comments from the earlier proposal. The comment period runs
until April 7, 2014 and allows for a reply period until April 14.
The NLRB also plans to have a public hearing on the rules sometime
during the week of April 7.
In all likelihood, the NLRB will follow the same pattern it did
when it originally proposed the changes to election rules.
Following the comment period, the NLRB majority will likely issue a
modified "final rule" that softens the effect of the
proposed changes in response to comments from business but still
provides for an expedited election process. The final rule would
become effective later in the year, unless of course it is again
derailed by litigation, which seems to be the pattern with any
action by the NLRB recently.
Assuming the rules do go into effect at some point this year,
unions will look to take advantage of the shortened election
process to organize a significant number of new members. Employers
concerned about unionization among their workforces should consider
what steps can be taken now, such as education of their management
groups and review of relevant workplace policies, to avoid negative
results under the new election procedure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
