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NLRB Proposes Controversial Changes to Election Process

The National Labor Relations Board recently proposed changes to its pre-election and post-election procedures that would significantly impact employers and could result in a greater number of successful union elections.  Most notably, the reform would require that the pre-election hearing be held within 7 days after the hearing notice is served (absent special circumstances).  Currently, employers can expect at least 30 days following a union election petition in order to express its views on whether employees should vote for the union prior to the election.  Opponents of the rule argue that unions generally campaign long before a petition is filed, and that providing the employer with such a short window to express its views unfairly stacks the deck in the union’s favor.

Additional amendments include:

  • Deferring litigation of most voter eligibility issues until after the election;
  • Making Board review of post-election decisions discretionary rather than mandatory; and
  • Providing less time for employers to provide the NLRB with a list of eligible voters, lists that would be required to include employee phone numbers and e-mail addresses.

A side-by-side comparison of the current election procedures versus the proposed election procedures can be found on the NLRB’s website

The proposed reform was sharply contested by Member Hayes, who drafted a dissent critical of both the alleged need for change and the specific amendments proposed.  According to Member Hayes, the election reform would implement the type of “quickie election” that has long been sought by unions out of a desire to “effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” 

The NLRB held public hearings on the proposed reform on July 18 and 19, and many in the business community opposed the changes. Public comments can be submitted in writing or electronically through until August 22, 2011.  If the reform is implemented, employers can expect to be required to comply with the new rules before the end of 2011.