On June 22, the National Labor Relations Board (NLRB) proposed amendments to its rules and regulations that, if adopted, would significantly affect the process for filing election petitions and conducting union representation elections, making it easier for employees to unionize.
The NLRB’s 146-page notice of proposed rulemaking includes many proposed amendments to its election rules, but most notable for employers are the changes to the pre-election hearing procedures and the so-called Excelsior List.
Current procedures
Under the current rules, a union can file a petition for a representation election after collecting signatures from at least 30 percent of workers in a bargaining unit. The NLRB then conducts a hearing for the employer and the union to resolve any disputes over which employees will be able to vote in the representation election and be represented by the union if the union wins the election. Once these issues are resolved, the NLRB sets the date for the secret ballot election, and within seven days the employer must provide the union with an Excelsior List — a list of the names and addresses of every employee eligible to be in the bargaining unit. The union uses this information to communicate with eligible voters prior to the election. After the election, the union and the employer have seven days to challenge the results of the election. Once any challenges are resolved, the union will become the exclusive bargaining representative of all employees in the bargaining unit if more than half of the votes are cast in its favor.
Hearing procedures
The proposed rules would require the union and the employer to submit a “Statement of Position” form prior to the pre-election hearing that sets forth their positions on any election-related issues in dispute, and neither the union nor the employer would be able to raise any issues not included in their Statement of Position (except for challenges to NLRB jurisdiction). If the issues in dispute affect fewer than 20 percent of employees in the proposed bargaining unit, resolution of those disputes would be deferred until after the election.
This is likely to lead to an increase in challenged election ballots, an increase in the number of election hearings, and an increase in unit clarification petitions, since issues regarding the appropriate scope of the bargaining unit may exist well after the election and into the collective bargaining process.
An additional concern under the proposed rules is the validity of elections. During an election, supervisors and other employer representatives are not allowed near the polling area, and the presence of a supervisor during voting is grounds for a new election. However, a common area of pre-election dispute is whether a particular individual is an employee or supervisor as defined under the National Labor Relations Act (NLRA) and thus whether the employee is eligible to vote. Under the proposed rules, no decision would be made with respect to such an individual until after the election.
If an individual who voted in the election was later determined to be a supervisor under the NLRA, the entire election could be void and the NLRB might have to run a new election.
‘Excelsior List’
The proposed rules would require employers to provide not only the names and addresses of potential bargaining unit employees, but also their telephone numbers and e-mail addresses, and employers would have only two days to provide the list to the union.
Providing the union with employees’ phone numbers and e-mail addresses raises privacy concerns and makes it much easier for the union to communicate with employees during the campaign period.
Rationale
The NLRB has stated that they’ve proposed these new rules to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation” under the NLRA.
The NLRB’s lone Republican, Brian Hayes, has dissented from the proposed rulemaking, stating that the proposed rule “tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress.” Hayes also criticized the short notice period and limited opportunity for review and comment on the proposed rules.
The NLRB’s notice allows 60 days for the filing of comments on the proposed rule changes. Comments may be submitted electronically through http://www.regulations.gov, or by mail to: Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th St. N.W., Washington, DC 20570.
Kimberly A. Klimczuk is a partner at the firm Skoler, Abbott & Presser, P.C., which handles employment and labor law cases through offices in Meriden as well as Springfield and Worcester, Mass. Klimczuk can be reached at 413- 737-4753 or KKlimczuk@skoler-abbott.com.
