Employers need to prepare themselves for the very real possibility of immediate and significant changes in the union election process which could result in shortening the time in which elections will be conducted. In August, we wrote about the numerous changes to the procedures governing union elections proposed by the National Labor Relations Board (“NLRB”) as part of its rulemaking process. These proposed changes, which most prominently include reducing the amount of pre-election litigation and shortening the time between the filing of a petition and the election, with elections being held as early as 10 days after a petition is filed, are significant. If adopted, these changes would both alter the landscape of secret ballot elections and place employers at a severe disadvantage by giving them much less time to respond to organizing campaigns.
After receiving more than 65,000 written comments on the proposal and hearing testimony from 66 speakers at a two-day hearing in July, last week, the NLRB announced it will vote November 30 “on whether to adopt a small number of the amendments to its election procedures that the Board proposed earlier this year.” Currently there are only three sitting NLRB members. Although the NLRB’s press release regarding this vote does not state the proposed amendments to the election procedures on which it intends to vote, it is believed that the final “rule” to be offered by Member Pearce will only relate to limiting pre-election litigation. However, given the current NLRB’s composition, the upcoming expiration of Member Becker’s recess appointment at the end of the year and the fact that the Board cannot issue rules or adjudicate cases with only two sitting members, it is possible that the NLRB will also consider a vote to shorten the election timetable to as little as 10 days from the filing of the petition to the day of the election.
The meeting of the NLRB’s three members, two Democrats and one Republican, will be held at the NLRB’s headquarters in Washington and will be open to the public, although the public may not participate. At this meeting, members will discuss and vote on a resolution to accept the Chairman’s proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.
We plan to keep a close eye on the NLRB’s vote and will report back following the vote. It is likely that a court challenge will follow the adoption by the Board of any rule which would have the effect of speeding up the election process. In the meantime, employers should be making plans as to how to handle organizing and election issues under a condensed timeframe including being pro-active with incumbent employees before organizing begins.