National Labor Relations Board Issues Final Rules on “Quickie” Union Elections

On December 22, 2011, The National Labor Relations Board (the “Board”) is set to publish final amendments to the procedures for union representation elections. These final amendments ( “Amendments”) follow a heated debate with opponents claiming that the changes allow unions to “ambush” employers with union elections and force employees to make quick, uninformed decisions about whether to unionize. Proponents, on the other hand, hailed the Amendments as an effort to end unnecessary litigation and remove unnecessary delays in effectuating an employee’s free choice. Prior to the Amendments, employees have had at least thirty-two (32) days to consider union representation after an election petition is filed. With the Amendments, the regional director has complete authority to set the time-frame for an election, allowing for an election to occur in as little as ten (10) days after an election petition is filed.

Employers complain that limiting this “critical period,” or the time between the filing of a petition and the election, could prevent employers from fully informing its workplace about the impact of unionization. Further, they argue that sufficient time to hear from all sides is critical considering the consequences of a union vote are not short-lived and could significantly affect an employee’s livelihood and career. Other Amendments aimed at streamlining the process include: allowing a hearing officer the right to limit the type and amount of evidence received in an pre-election dispute, removing the right to submit written materials in a pre-election dispute, and removing a party’s right to appeal the results of a pre-election dispute to the Board. Notably, the Board did not finalize all of the proposed amendments that it previously suggested in its June, 2011 proposed rule. However, the Board was quick to point out that the remainder of the June proposed amendments are still being debated. For its part, the U.S. House of Representatives has already made its position known and voted on November 30, 2011, to pass a the Workforce Democracy and Fairness Act, which would prohibit unions from holding an election until at least thirty-five (35) days after filing a petition (H.R. 3094). Although the bill passed in the House, it is expected to fail in the Democratic-controlled Senate. These Amendments are set to become effective April 30, 2012, and employers should keep an eye on further pro-union moves by the Board as the President seeks to appoint two new Board members in the new year.