In a proposed rule to be published in the Federal Register today, June 22, 2011, the National Labor Relations Board would streamline and expedite its election procedures. Stating a desire to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation,” the rule would move resolution of eligibility disputes to the post-election period, reduce the ability of parties to seek Board review in representation cases, shorten various existing filing deadlines, require employer disclosure of employee contact information, and allow the parties to make increased use of electronic filing. In setting forth these amendments, the Board’s Democratic-majority maintained that the regulations merely seek to reduce unnecessary litigation and undue delay - they would not require that representation elections be held within a specific number of days.
Brian E. Hayes, the NLRB’s lone Republican, expressed doubts that the majority was concerned about expediting the representation elections process. He disputed the claim that the process is too slow, and argued that the majority’s true aim was to aid unions in representation elections.
With the NLRB embroiled in a series of contentious partisan disputes, including the recent filing of union discrimination charges against Boeing, Inc. and legal challenges to state constitutional amendments outlawing the majority sign-up process, the reaction to the proposed rule was predictable. Union leaders praised it, noting that the reforms would bring faster, more transparent elections, while business interests and Republicans have characterized the proposed rule as a giveaway to labor.
Labor has long criticized the current representation election procedures, believing they allow employers to defeat union drives through delay and labor consultant-directed anti-union messaging. The shorter election periods would thus provide employers with a smaller target and would likely allow more representation drives to come to a vote. While unions win nearly two-thirds of representation elections coming to a vote, they fail in the majority of the representation drives they initiate. Employer opposition - primarily through coordinated messaging and education campaigns - leads roughly three in every 10 election drives to fizzle out prior to voting, either through union withdrawal or NLRB rejection of an election petition.
The NLRB will allow 60 days for written comments and will hold a public hearing on the proposed rule on July 18-19 in Washington, D.C.