Many recall the push a few years ago to enact a legislative bill, the Employee Free Choice Act, that would have required an employer to recognize and bargain with a union without a secret ballot election if the union could present cards signed by a majority of the employer's workers indicating their wish to have a union. That bill, strongly favored by organized labor, never got enough traction to get passed into law.

Proponents of the measure turned to non-legislative approaches to alter what they saw as a stacked deck against unions that accounted, in part, for their poor record in union elections. With the advent of a newly constituted National Labor Relations Board (NLRB) appointed by the Obama administration, some of that hope may have been fulfilled. Through its rule-making authority, the NLRB recently has imposed on employers a new notice posting requirement intended to heighten employee awareness of their collective bargaining rights, and is also proposing a new set of election rules that should improve unions' chances in elections. In addition, through its administrative case adjudication authority, the NLRB has issued three case decisions reversing precedent—one that makes it easier for a union to choose the unit of employees in which an election will be conducted, and two that make it harder for employees to oust an incumbent union.

These developments come on the heels of the controversial legal action by the NLRB's Acting General Counsel seeking to enjoin Boeing from opening a new non-union manufacturing facility in South Carolina, as well as a flurry of unfair labor practice complaints against employers that discipline employees in connection with the use of social media (see related article on the NLRB's recent guidance regarding social media in the workplace). Together, these actions have some in the business community complaining of a decidedly pro-union tilt by the NLRB.

The New Posting Rule

The NLRB has issued a final rule requiring most private-sector employers, beginning on November 14, 2011, to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a standard notice. Now available on the NLRB website and from NLRB regional offices, the notice informs employees that they have the following rights: 

• To organize a union to negotiate with their employer concerning their wages, hours and other terms and conditions of employment; 
   
• To form, join or assist a union; 
   
• To bargain collectively through representatives of their own choosing for a contract with their employer setting wages, benefits, hours and other working conditions;  
   
• To discuss their terms and conditions of employment or union organizing with their coworkers or a union; and 
   
• To strike and picket under certain circumstances.

The notice also advises employees of their right to choose not to engage in any of these activities.

The posting requirement applies to all but the smallest of private-sector employers, but not to agricultural, railroad and airline employers that are excluded from coverage by the NLRA. Posting is required whether or not there is a union in the employer's workplace. In addition to a physical posting, every covered employer must post the notice on an Internet or Intranet site if personnel rules and policies are customarily available there.

Failure to post the notice may be treated as an unfair labor practice under the NLRA. In addition, if there are other unfair labor practice allegations against the employer, the NLRB may extend the six-month statute of limitations for the filing of those charges. Also, a failure to post may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

The NLRB justifies its actions by claiming that many employees are not aware of their rights under the NLRA and that the new rule is in line with other labor laws that impose posting requirements. Opponents argue, however, that such a notice posting (previously required only in limited situations, such as when an election is scheduled) is unnecessary and promotes unionization through its heavy emphasis on the right to unionize and collectively bargain.

Proposed Rule Changes to NLRB Election Procedures

The NLRB has published proposed rules that would significantly accelerate the union election process. While not explicitly stated, the likely combined effect of the rule changes would shorten the time between the filing of an election petition and the election itself by more than half. Under the proposed rules, employers could expect the NLRB to conduct elections within 10 to 21 days after a petition is filed, rather than the current average of 31 days.

Among the more significant changes are the following:

• Regional NLRB offices typically conduct pre-election hearings within 14 days after a petition is filed. Under the new rules, pre-election hearings would be held within seven days after an election petition is filed. 
   
• Employers are not currently required to identify every issue prior to the pre-election hearing. Under the new rules, employers would be required to identify all issues regarding unit scope, voter eligibility and supervisory issues before the pre-election hearing, at the risk of waiving issues not raised at the first opportunity. 
   
• Under current practice, pre-election hearings can involve disputes over whether certain employees are eligible to vote, such as whether an individual is a supervisor. Under the proposed rules, however, disputes over the eligibility or inclusion of less than 20% of the employees in the proposed unit will be deferred to post-election proceedings.
   
• Review of pre-election hearing decisions now takes place before the election is conducted. Under the proposed rules, such review would be deferred until after the election. 
   
• Currently, employers must provide the NLRB with a list of eligible voters and their home addresses (used by the union to communicate with voters) within seven days after the NLRB Regional Director issues an order setting the election. Under the proposed rules, not only would that period be reduced to two days, but also the employer would have to provide the e-mail addresses and telephone numbers of employees eligible to vote in the election.

In effect, the proposed new rules would dramatically alter the landscape in NLRB-conducted union elections. By significantly shortening the pre-election period, the rules would hamper the employer's ability to contest the scope of the unit of employees selected by the union for inclusion in the election. But of even more importance, the new rules would shorten the timeframe available to employers to communicate with employees on the wide variety of issues that arise in a union organizing campaign, such as the reasons why voting for the union may not be in their best interests. Opponents, who include dissenting NLRB Board Member Brian Hayes, contend that the real objective of the proposed new rules is to make it easier for unions to win elections by handicapping the employer's ability to oppose them.

At the same time, the U.S. Department of Labor (DOL) has proposed a new rule that also would negatively affect an employer's ability to communicate with employees in union elections. The Labor-Management Reporting and Disclosure Act (LMRDA) already requires reporting of arrangements, receipts and expenditures derived from providing so-called "persuader activity" services. Historically, attorneys providing legal advice regarding lawful employer communications to employees have been exempt from this requirement. The DOL's proposed rule, however, would severely curtail this exception, rendering such attorney advice as "reportable" under the law.

Recent NLRB Decisions Reversing Case Precedent

In addition to having rule-making authority, the NLRB acts as a review body that establishes case law interpreting the NLRA. In three decisions issued on August 26, 2011, the NLRB set new standards favoring organized labor—each time over a dissent.

Perhaps the most wide-ranging of these decisions is Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83, in which a union sought an election at a non-acute care nursing home limited to certified nursing assistants. The employer argued that the unit was too small and should include cooks, schedulers, recreational staffers and other workers. Reversing case precedent, the NLRB disagreed. But the NLRB also indicated that in any case in which an employer challenges a petitioned-for unit as inappropriate because it does not contain additional employees, the burden is on the employer to demonstrate that the employees excluded by the petition share an overwhelming community of interest with the included employees. This decision may make it significantly easier for unions to organize sub-units of an employer—such as employees of one department—as opposed to an entire facility.

The other recent decisions make it harder for employees to oust incumbent unions. In Lamons Gasket Company, 357 NLRB No. 72, the NLRB ruled that if an employer voluntarily recognizes a union as a collective bargaining representative for a particular unit of the workforce based on a card check, then the NLRB would observe a strict bar of six to 12 months after the union's first bargaining session during which it would not consider a petition by employees for an election to decertify the union or otherwise attempt to oust the union. This action reversed a 2007 decision holding that employees could ask for such an election within 45 days of management's recognition of the union. Similarly, in UGL-UNICCO Service Company, 357 NLRB No. 76, the NLRB overruled a prior decision that had created a small window—immediately after the sale or merger of a business—during which the incumbent union's status could be challenged if 30% of employees showed interest. Now, an incumbent union will have six to 12 months after the parties' first bargaining session to negotiate with the successor company before such a challenge could be mounted.