NLRB’s Final Rule for Representation-Case Process
Last week, the NLRB approved final rules for a more modern and streamlined process for Representation-Case procedures, set to go into effect next year on April 14, 2015. Once in effect the rule will help to cut down the time between an organization campaign and representation election, in addition to offering unions new avenues of communication with employees.
Here’s a shocker for you…employer’s are up in arms about the proposed changes to the representation-case process. So much so, that several organizations representing employers in varying industries have joined to file a lawsuit against the NLRB’s proposed rules.
Currently, the representation process involves the filing of a petition by employees, unions, and employers to the NLRB to conduct an election in order to determine if employees wish to be represented for the purposes of collective bargaining with their employers.
In most cases the parties involved agree on the voting unit (those who are eligible for representation) and any other issues that may arise from the campaign. However, if there is a dispute of any issues, then the NLRB Regional office will hold a pre-election hearing to determine if an election should be held. The NLRB Regional office will also post-election hearings to resolve challenges of the eligibility of the voting block or objections to the conduct of the election or conduct affecting the results of the election.
According to the NLRB, “only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held. In many cases, those issues will not need to be litigated because they have no impact on the results of the election.”
The new NLRB rule also highlighted several other changes that will modernize the representation-case process:
- Provides for electronic filing and transmission of election petitions and other documents;
- Ensures that employees, employers and unions receive timely information they need to understand and participate in the representation case process;
- Eliminates or reduces unnecessary litigation, duplication and delay;
- Adopts best practices and uniform procedures across regions;
- Requires that additional contact information (personal telephone numbers and email addresses) be included in voter lists, to the extent that information is available to the employer, in order to enhance a fair and free exchange of ideas by permitting other parties to the election to communicate with voters about the election using modern technology; and
- Allows parties to consolidate all election-related appeals to the Board into a single appeals process.
This apparently has got the Coalition for a Democratic Workplace (CDW), the National Retail Federation, the National Association of Manufacturers, the U.S. Chamber of Commerce, and SHRM in a tizzie, since they’re planning together to file a lawsuit against the NLRB in response to their final rule.
According to SHRM:
- The board’s new election rules are arbitrary and capricious under the Administrative Procedure Act, as they are not based on any reasoned analysis and fail to identify a reasoned need to change current board election rules.
- The election rules deprive parties of their due process rights under Section 9(c) of the NLRA by not providing for an “appropriate hearing” in which interested parties have a “full and adequate opportunity” to present evidence on all issues pertaining to a board election.
So here’s my beef with the first point SHRM makes regarding the Administrative Procedure Act. SHRM states that the NLRB failed to identify a reasoned need to change current board election rules. However, the NLRB posted a statement to their site that specifically mentioned “the Board believes the rule will enable the agency to more effectively administer the National Labor Relations Act by modernizing its rules in light of modern technology, making its procedures more transparent and uniform across regions, and eliminating unnecessary litigation and delay.” I don’t know about you, but I think that’s a pretty good reason to enact some change in the rules.
As for not providing an appropriate hearing, well…the Board issued a proposed rule on February 6, 2014, they held a public hearing on April 10 and 11, 2014. These notices and hearings were set-up to receive any new feedback from the public that had not already been submitted during notices and hearings in 2011 when the rule was first proposed and implemented and later rescinded because a Federal court later held that the Board had lacked a quorum in issuing the final rule. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 28–30 (D.D.C. May 14, 2012). In sum, the Board has accepted comments on these proposals for a total of 141 days, and held a total of 4 days of oral hearings with live questioning by Board members. Tens of thousands of people have submitted comments on the proposals, and Board members have heard over one thousand transcript pages of oral commentary.
All in all, employer’s are trying to hold onto archaic rules that they see as protecting their rights. However, I think that this is a good step forward in protecting employee rights as well, and really bringing the whole unionization process into the 21st century. I am wary of the employee privacy when it comes to providing unions with sensitive employee information (i.e email addresses), but I’m curious to see how this plays out in court.