The currently Republican-controlled U.S. Congress has made it clear that pushing back on the National Labor Relations Board's (NLRB) recent efforts, which appear motivated by a mandate to tip the scales in favor of employees and to the advantage of union organizing, is high on the agenda. Last week, the Senate revealed its latest effort toward this goal when it passed S.J.Res.8. The resolution is a joint initiative with the House of Representatives aimed at blocking an NLRB rule passed last December from becoming effective.
S.J.Res.8 targets the NLRB's "Representation — Case Procedures" rule, which sets out important changes in the union election arena. The new rule significantly speeds up the union election process and updates the methods for initiating and holding elections. The most noteworthy changes contained in the NLRB's rule include:
- Allowing election petitions to be filed electronically with the NLRB
- Holding the pre-election hearing eight days after the notice of hearing is served on the employer
- Requiring employers to provide a detailed statement that identifies all of the issues the employer wishes to litigate before the election at least one day before the pre-election hearing is set
- Prohibiting the regional director from hearing issues that the employer did not include in its initial position statement
- Eliminating the parties' right to submit a written briefing before or after the pre-election hearing without the regional director's prior permission
- Eliminating the automatic stay-of-ballot counting, whenever either party requests the NLRB's review of a regional director's decision on whether to direct an election
- Allowing elections to proceed immediately after the regional director directs an election, and doing away with the usual automatic 25-30 day stay period to allow the NLRB to decide on requests for review
- Compelling employers to provide the petitioner and the regional director with electronic lists of complete employee contact information (including email addresses and phone numbers) within two business days of the regional director's direction of an election
Members of Congress who opposed S.J.Res.8 argue that the sole aim of the NLRB's new rule is to streamline and update union election processes and procedures. Conversely, S.J.Res.8 supporters view the NLRB rule as unnecessarily rushing the union election process in an effort to undermine employees' abilities to become completely informed before voting in union elections.
Apparently, anticipating that the resolution will pass both houses of Congress, the Obama administration has made its opposition to these actions clear. In a policy statement published on its website, the White House renounced S.J.Res.8 as "seeking to undermine a streamlined democratic process for American workers." If and when the resolution makes it to the president, he will almost certainly veto it. Given the unlikelihood of a congressional override of the expected presidential veto, whether the NLRB's new rules will ultimately be blocked will then rest with federal courts in Washington, D.C., and Texas, where legal challenges are currently pending.
The NLRB rule S.J.Res.8 seeks to block is set to go into effect in April. Under these new rules, a union election can occur as quickly as 11 days after an election petition is filed. If the NLRB's updated rules do, ultimately, go into effect this spring, employers can likely expect a flurry of union organizing activity intended to capitalize on the expedited election procedures. Employers should stay tuned for further developments.
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