The National Labor Relations Board (“NLRB” or the “Board”) has renewed a proposed rule governing the filing and processing of petitions relating to the representation of employees for purposes of collective bargaining.  If implemented, the proposed rule would dramatically shorten the time between the filing of a certification petition and the conduct of an NLRB secret ballot election.

The Board’s proposal is, in essence, a reissuance of a rule proposed by the Board on June 22, 2011. On December 22, 2011, the Board issued a final rule, which the United States District Court for the District of Columbia struck down on the ground that the Board lacked a quorum when it approved the final rule.  Now, the Board is again proposing the same changes and asking for any comments the public may have on whether or how the Board should act on the proposed rule. 

In support of the reissuance of the 2011 proposal, a majority of the NLRB noted its belief that the reasons that existed for the rule changes in 2011 are still current.  In the last decade, more than 90% of representation elections were conducted within 56 days of the filing of a petition.  During the same time, the median time between petition and election was 37-39 days.  In fiscal 2010, the average time from petition to election was 31 days.  In the context of federal government responsiveness, a 31-day, or even a 37-day, turnaround is relatively quick.  Not so, according to many in organized labor and the three NLRB members who endorsed the rule changes.

Two Board members, Philip A. Miscimarra and Harry I. Johnson, III, dissented from the Board’s Notice of Proposed Rulemaking (“NPRM”), citing the proposal’s destructive effect on procedural safeguards and employers’ and employees’ ability to communicate effectively among themselves regarding the prospect of a union in the workplace.  “Among other things, the NPRM would impermissibly conduct expedited elections before a hearing is held regarding fundamental questions such as who is actually eligible to vote, thereby resulting in an ‘election now, hearing later,’” the dissent asserted.  “The NPRM would improperly shorten the time needed for employees to understand relevant issues, compelling them to ‘vote now, understand later.’ It would also curtail the right of employers, unions and employees to engage in protected speech.”

The NLRB proposal, which was published in the Federal Register on February 6, 2014, would eliminate pre-election evidentiary hearings and requests for review and defer decision on virtually all issues relating to appropriateness of units and voter eligibility now decided at the pre-election stage.  The amendments would also expand the personal information relating to employees which employers are required to disclose to unions in voter eligibility lists known as “Excelsior lists.”  Specifically, the proposed amendments would require that both telephone numbers and email addresses, if available, be included along with employees’ names and addresses.  In addition, the NLRB would require that the employer disclose the employee’s work location, shift, and classification.

The effect of the proposal would be significant.  In union organizing drives, organizers often conduct their activities underground and employers have no hint of organizing activity until the union files its petition at the NLRB.  Under the NLRB’s current process, the median campaign time of 37-39 days is a relatively short period which generally helps unions.  The NLRB’s election statistics show that, under current rules, unions won approximately 63% of certification elections in the decade 2004-2013.  By shortening the time between petition and election, the NLRB proposal will almost certainly increase organized labor’s win rate.  Although a dissenting Board member indicated in the 2011 NPRM that the proposed rule would cut the time between petition election to 10-21 days, the 2014 NPRM is silent with respect to any predicted timeframe that the proposed rule changes will impose.

The NLRB’s rulemaking signals an aggressive use of regulatory power to accomplish objectives advocated by organized labor, and employers should be prepared to see more union organizing activity.  The old adage that an ounce of prevention is better than a pound of cure will become more and more relevant.  Accordingly, employers should consider proactive measures to prepare for a higher risk of organizing, including regular supervisor training in labor relations and communication to employees regarding how a union in the workplace can affect them.  Effective communications with employees on labor relations can be accomplished through meetings with employees, letters and flyers, and the employer’s own notice postings, all of which should be considered by employers.