Employers Disadvantaged by New NLRB Election Rules
- By Your mom
- •
- 03 May, 2012
Effective April 20, 2012, the National Labor Relations Board implemented a new set of
union election rules that will limit the type of pre-election legal challenges available to
employers. With fewer permissible challenges, there will be fewer pre-election hearings and
balloting will take place more rapidly. Employers are concerned that faster elections will
prevent them from adequately educating their workforce prior to the vote.
In addition, because employers may no longer contest voter eligibility, including a
determination of who is a supervisor prior to the election, they are more susceptible to unfair
labor practice charges for acts committed by employees who are later found to be supervisory in
nature.
Prior to the rule change, Board policy had been to schedule elections within 42 days of
receiving the petition. Where there is no pre-vote litigation, and the election is held based on a
stipulated pre-election agreement, the average period from petition to election was 31 days. The
median period was 38 days. Where, however, pre-vote litigation was initiated; the time frame
averaged 101 days. By eliminating the grounds for pre-vote litigation, the Board intends to
speed up the election process in more cases.
Now, instead of being able to challenge unit appropriateness, voter eligibility, and Board
jurisdiction before the election, challenges in that timeframe will be limited to whether a union
has produced a show of interest. Further, under the new rules, when a pre-election hearing is
held, the hearing officer has the discretion of whether to accept post hearing briefs. Where they
are not accepted, the decision process and election time frame shrinks. Also, review of the
Regional Director’s pre-election decision is no longer permitted. In addition, the current 25 day
waiting period between the Regional Director’s decision and the election will be eliminated.
The Chamber of Commerce has already filed a legal challenge to the new rules, and the
House of Representatives passed HR 3094, the Workplace Democracy and Fairness Act, which
would reverse a number of the changes. In the meantime, the changes have taken effect and the
Board has issued a press release that among other things provides a link to a flow chart showing
the prior and current election processes. Click Here
union election rules that will limit the type of pre-election legal challenges available to
employers. With fewer permissible challenges, there will be fewer pre-election hearings and
balloting will take place more rapidly. Employers are concerned that faster elections will
prevent them from adequately educating their workforce prior to the vote.
In addition, because employers may no longer contest voter eligibility, including a
determination of who is a supervisor prior to the election, they are more susceptible to unfair
labor practice charges for acts committed by employees who are later found to be supervisory in
nature.
Prior to the rule change, Board policy had been to schedule elections within 42 days of
receiving the petition. Where there is no pre-vote litigation, and the election is held based on a
stipulated pre-election agreement, the average period from petition to election was 31 days. The
median period was 38 days. Where, however, pre-vote litigation was initiated; the time frame
averaged 101 days. By eliminating the grounds for pre-vote litigation, the Board intends to
speed up the election process in more cases.
Now, instead of being able to challenge unit appropriateness, voter eligibility, and Board
jurisdiction before the election, challenges in that timeframe will be limited to whether a union
has produced a show of interest. Further, under the new rules, when a pre-election hearing is
held, the hearing officer has the discretion of whether to accept post hearing briefs. Where they
are not accepted, the decision process and election time frame shrinks. Also, review of the
Regional Director’s pre-election decision is no longer permitted. In addition, the current 25 day
waiting period between the Regional Director’s decision and the election will be eliminated.
The Chamber of Commerce has already filed a legal challenge to the new rules, and the
House of Representatives passed HR 3094, the Workplace Democracy and Fairness Act, which
would reverse a number of the changes. In the meantime, the changes have taken effect and the
Board has issued a press release that among other things provides a link to a flow chart showing
the prior and current election processes. Click Here
