We discussed the National Labor Relations Board's new election rules in our December 7, 2011 Compliance Matters. These sweeping rule changes, which some in the business community have dubbed the "ambush election" rules, have the effect of substantially shortening the timeframe within which NLRB secret ballot elections are conducted. A natural by-product of the new rules is that employers will now have considerably less time to combat the union's organizing effort after the union initiates the NLRB secret ballot election process.
On April 26, 2012, the NLRB's General Counsel issued an important 24 page Memorandum and a set of Frequently Asked Questions (FAQ's) to advise the Board's Regional Offices on how they are to implement the Board's new election procedures. The rules went into effect on April 30, 2012. Some of the key provisions of the Memorandum:
* Election petitions are to be the Regional Offices' "highest docketing priority", ahead of unfair labor practice charges.
* New (shorter) time frames designed to get the voters' ballots into the ballot box as quickly as possible. For example, the pre-election hearing, where the parties or the Board decide the who, what, when and where of an election, will be conducted just 5 business days after the petition is filed.
* Hearing officers are directed to vastly limit the scope and length of the pre-election hearing, with the aim of getting the balloting completed as quickly as possible after the union initiates the election process. For example, the hearing officer generally will not consider whether a potential voter is ineligible to vote because s/he is a supervisor, a manager, or a confidential employee unless the employer can show that more than 10% of the eligible voters are in these categories. Rather, that determination will be made, if at all, only after the election.
* Written post-hearing briefs will not be permitted, except in cases involving novel or complex legal and factual questions.
In addition, the General Counsel's Memorandum highlights and reconfirms recent NLRB decisions that significantly curtail when and how a group of employees (or a rival union) can decertify an incumbent union:
1. Where an employer has voluntarily recognized a union through a so-called "card check" procedure, the NLRB will not entertain a challenge to the union's representational status for a minimum of 6 months, and perhaps as long as 1 year.
2. Where the buyer of a unionized business hires a significant percentage of the seller's employees (in labor law parlance, the buyer is said to be a so-called "successor" employer), the NLRB will not entertain a challenge to the union's representational status of the buyer's employees for between 6 months and 1 year. That period will be extended considerably (up to 3 years) where the buyer agrees to adopt and follow the seller's union contract.
3. The union will be allowed to organize virtually any group of workers it wants to represent. By approving so-called "micro units", the Obama NLRB will allow the union to cherry pick a group of employees to use as a base for organizing an employer's other employees.
According to the latest NLRB statistics, last year unions won 71% of the NLRB elections under the old rules. Their success rate could improve dramatically under these new rules.
Since business owners no longer have the luxury of mounting a 6-8 week informational campaign after the union requests an election, different success strategies will be needed. BRGS labor relations lawyers collectively have over 100 years of experience in the field. We would welcome the opportunity to discuss how your business can maximize its opportunities in this challenging new environment. Contact one of our partners to arrange for a consultation.
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
