NLRB Hearing on Elections Rule

July 20, 2011

On Monday and Tuesday of this week, the National Labor Relations Board (NLRB) held a two-day hearing on their proposed rule to amend and shorten the union-organizing election process. With more than 60 speakers testifying, NLRB Chairman Wilma Liebman kicked off the hearing with a commitment of the board members to listen with open minds to all speakers.

As previously reported, the NLRB  has proposed a new rule to amend and shorten the union-organizing election process. The new rules will:

  • Require employers to give union organizers electronic files with employees contact information now to include cell phones and e-mail addresses;
  • Shorten the time within which a union election must take place following the filing of an election petition by removing the 25-30 day waiting period, allowing either side to request reviews, requests that are now rarely filed or granted;
  • Limit pre-election processes by deferring litigation of most voter eligibility issues until after the election;
  • Make post-election reviews discretionary; and
  • Require pre-election hearings to begin just seven days after a petition is filed.

The rule has garnered a great deal of attention and broad opposition from employer groups across the country. The hearing earlier in the week hosted speakers from about 14 unions, 10 businesses or business groups, various academics and law-firm consultants.

Speaking on behalf of the Coalition for a Democratic Workplace—of which NSBA is a member—Charles Cohen, an attorney at Morgan Lewis and Bockius LLP, stated that the proposal is “designed to deprive employers of representation.”

Also registering opposition was Peter Kirsanow, a former member of the NLRB in 2006-2008, who said, “An election would be carried out even before an employer figures out what it wants to say.”

Despite claims by NLRB spokesperson Nancy Cleeland that it would be a long process before any new rules to into effect, the actual timing has been extremely narrow. The rule was first introduced June 22 with a comment deadline of Aug. 22. Cleeland stated that such reforms could be in place—although admittedly an optimistic timeline—by late-September.

Organized labor has been pushing this change, along with other efforts such as the Employee Free Choice Act, in an effort to change rules they claim are tilted in favor of employers. These changes would make it much easier for a union campaign to proceed unfettered, resulting in increased union memberships. Since the early 1950’s union membership has dropped from 36 percent to seven percent today.

The rules could conceivably shorten the period between a petition filing and election to as little as 10 days, from the current median of 38 days.

Please click here to view the full rule.

NSBA will be submitting comments on this rule. Please tell us how this rule will impact you by clicking here to e-mail us your comments.