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Feb 5, 2014

By Ilyse Wolens Schuman and Michael J. Lotito

As expected, the National Labor Relations Board has re-issued its proposed rule that would dramatically change and expedite the union representation election process.

According to the NLRB, the proposed changes to the process “are identical to the representation procedure changes first proposed in June of 2011.”

Notably, the Board has chosen to re-propose the original “ambush” election rule, and not the scaled-back version it issued in December of that year, which a federal district court eventually invalidated because the NLRB lacked a valid quorum at the time of approval.

What the NLRB rule would do

As previously discussed, many of the proposed amendments seek to shorten the time period between the filing of a petition and the election. In essence, these rules would implement many goals of the much-maligned Employee Free Choice Act (EFCA), which failed to advance in prior Congresses, and has no chance of passage anytime soon.

Among other changes:

  • The proposed rule would reduce from 14 days to 7 days the time for scheduling a pre-election hearing from the filing of the petition.
  • Voter eligibility issues would be deferred until after the election instead of determined at the pre-election hearing.
  • Employers would have to state their position on unit issues no later than the start of the hearing, before any other evidence is accepted.
  • In essence, the proposal would eliminate pre-election evidentiary hearings as much as statutorily permissible.
  • It would also dispense with pre-election requests for review and defer decisions on most issues currently decided at the pre-election stage.

Full Board expected to push revised rule through

In addition, employers would be required to provide a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing. Employers would have to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.

Finally, the proposal would eliminate any automatic right to post-election NLRB review of contested issues.

More than 66,000 comments were filed after the June 2011 publication of the same proposed rule. Now that the NLRB has a full complement of members, expect a repeat performance with potentially a very different outcome.

When an expedited election process is combined with the anticipated fallout of the imminent persuader regulations and the proliferation of micro-bargaining units stemming from the Board’s Specialty Healthcare decision, a regulatory environment ripe for union organizing is created.

Comments on the re-issued proposal are due on or before April 7, 2014. The NLRB will also schedule a public hearing during that week.

A more detailed discussion of the proposed rule is forthcoming. Stay tuned.

This was originally published on Littler Mendelson’s Labor Relations Counsel blog© 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

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