NLRB Adopts Final Rule Implementing Some, But Not All, Proposed Regulations

Date: January 12, 2012

On December 21, the NLRB adopted a final rule implementing certain changes to the procedures governing union elections.  While the NLRB has chosen to forego implementation of some of the more controversial proposed rules that had previously been announced, the changes included in the final rule will nevertheless have significant consequences for employers who may be targeted for organizing.  This article examines the Board's final rule and its potential impact for employers. 

In June 2011, the National Labor Relations Board issued a proposed rule announcing seismic changes in the procedures applicable to union organizing elections.  Among these changes was a controversial shift to so-called “quickie elections,” under which the standard time period between the filing of a representation petition and the subsequent election date would have been reduced from approximately forty days to between ten and twenty-one days.  Such a change would have tilted the playing field in favor of union organizers by significantly reducing the amount of time available to employers to mount a campaign responding to the petitioning union. 

After announcement of the proposed rule, further action had been on hold pending a period for public comment.  The Board broke its silence on the regulations at a November 30 meeting at which it adopted a resolution to develop a final rule implementing some, but not all, of the proposed changes.  Significantly, the “quickie election” procedure was not among those proposals included in the resolution, so concerns relating to that development can (temporarily) be put to rest.  Also excluded from the resolution was a proposal that would have required an employer to furnish to the petitioning union email addresses and telephone numbers for those employees participating in the election.  The Board subsequently adopted a final rule implementing the changes encompassed by the November 30 resolution. 

While employers will certainly be pleased with the Board's decision not to move forward with the changes outlined above, the final rule contains a number of modifications to Board procedure that will be of concern to employers.  Chief among these is the Board's decision to limit the issues to be considered at the standard pre-election hearing to those which directly affect whether a “question of representation” exists.  While the Board has justified this decision on the grounds that the change will reduce unnecessary litigation, the net effect of the change is likely to be that employers will be hamstrung in their ability to dispute the proper scope of a bargaining unit identified in a representation petition.  Prior Board decisions have held that a union's proposed bargaining unit is entitled to significant deference, and the implementation of the final rule is likely to further reduce an employer's opportunity to challenge the union's definition of the unit.  This change may manifest itself by way of unions choosing to file petitions seeking representation of subsets of workers who might otherwise be deemed to have a community of interest with a larger group of employees.  In such a scenario, the union would potentially increase its chances of success (by reducing the number of “yes” votes it must gain in an election), and an employer that is deprived of an opportunity to meaningfully argue for a larger unit may end up with a union which represents an unwieldy subgroup of its workers and has a toehold from which to subsequently expand its reach. 

The remaining proposals incorporated by the Board's final rule deal primarily with the handling of appeals connected with representation proceedings.  Perhaps the most significant of these changes is a proposal to dramatically increase the authority of the regional directors who preside over the Board's various regional offices and correspondingly diminish the ability of employers and unions to seek review from the Board itself.  In addition to limiting the right of review, this change also has the potential to promote uncertainty, as the law may well be applied differently from region to region depending on the interpretations of each regional director.  The Board's resolution also modifies the appeal procedure to eliminate preelection appeals, which in certain cases will have the effect of reducing the amount of time between the filing of a petition and the election date. 

Takeaway for employers:
The procedural changes implemented as part by the Board's resolution will significantly alter the nature of election proceedings before the National Labor Relations Board, in a manner that seems likely to increase a union's chances of success in representation proceedings.  The potential implementation of the Board's new election procedures, particularly when viewed in connection with the Board's notice posting requirement set to take effect in April 2012, reinforces the need for employers to be aware of potential organizing activity in their workplaces and to develop plans for responding to a union campaign.  Developing such contingency plans, as well as training management personnel to properly recognize and respond to organizing activity, are critical steps that employers can take now to prepare their businesses to respond effectively in the event that they are targeted for organizing under the new procedures.