4 August 2011

National Labor Relations Board Proposes The Quick Snap

Remember the 2010 Oregon Ducks football team?
United States Employment and HR
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Remember the 2010 Oregon Ducks football team? Their offense could snap the ball and run a play before the other team's defense could get on the field (they scored 72 points in one game). Well, the National Labor Relations Board on June 22 issued its notice of proposed rulemaking for quick snap union representation elections. Public agency meetings were held on the proposed rule just this past week. Under the new rule, representation elections would take place so quickly after a petition is filed that employers would have virtually no time to get their defense on the field.

Much has been written about the Employee Free Choice Act ("EFCA"), also known as the "card check" bill. The BABC Labor and Employment Group wrote about it several times, including here. The EFCA, which would do away with elections altogether, would allow unions to come into an employer's site with virtually no notice at all. That bill stalled in Congress after its introduction several times, and although it was a priority for the Democrats after the 2008 sweep, it apparently disappeared behind healthcare reform.

So now, what could not be accomplished through legislation is being pushed through agency rulemaking. After 2008, President Obama nominated two very pro-union Democrats for the NLRB. We wrote about them here. The pro-union dominated Board now is attempting to change a 50-year-old union election procedure through rulemaking similar to the way the EFCA would have done.

To review, in order for a union to represent employees at an employer's work site, an election normally is held. Union representatives first spend days, months, or even years organizing employees and gaining support, usually away from the worksite and without the employer knowing about it (this writer first was presented with a union card one night back in the 1970's at an Omelet Shoppe – remember those?) After 30 or more percent of the workforce indicates support by signing a card, the union may file a petition for an election with the Board (although unions typically wait until they have more than 50 percent of the workforce committed before filing the petition). An election then is held 30 to 40 days after the petition. This is the so-called campaign period. Normally, employers inform employees about the positive aspects of the company and of being union free since all the employees have heard from the union organizers to that point is the negatives about the company and promises about how the union can make it better.

The new rule would do away with the campaign period. Elections would be set in as little as ten days after a petition is filed. Most companies could not respond to the union's promises to the workers in such a short period of time and certainly could have difficulties hiring counsel and reviewing potential legal challenges. The new rule eliminates the company's right to appeal to the Board about certain issues before the election. Employers under the new rule also have to provide phone numbers and email addresses of the employees to the union in just a matter of days. Thus, the "quick snap." The new rule definitely would favor unions who can organize for an extended period of time knowing that there would be no time for an employer effectively to respond.

Union membership in the private sector is down from 30 percent to 7 percent according to some estimates. The Obama Board wants to change the trend. Quick snap elections likely would help. The comment period for employers to respond to the new proposed rule is open until August 22. Information about how to comment is here.

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