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NLRB proposes new rules to help unions organize

The National Labor Relations Board (NLRB) has recently been in the spotlight over the complaint its General Counsel filed against Boeing seeking to reverse the company's decision to build a facility in South Carolina for production of the Dreamliner. The NLRB's proposed rules revising the procedures leading to union elections, which were announced today, may not garner as much media attention, but will likely have a more profound effect on business and labor in the long run.

Some background on the current procedure is necessary to understand the impact of these proposed rules. Generally, the zenith of a union's support is at the time it files a petition for an election. Consequently, unions usually want to have an election quickly, while employers want more time to communicate their message.

When a union files a petition, the union and employer voluntarily agree over the election details - which employees are eligible, which are excluded, the date, times and location of the election, etc. - 92% of the time. If there is a voluntary agreement (called a "stipulation"), the NLRB requires that the election be conducted within 42 days from the date of the petition.

If there is a dispute over which employees are eligible or some other detail, a hearing is held and a decision resolving the dispute is issued, with an election typically scheduled 25 to 30 days after the decision. The election can be delayed, however, if the losing party appeals to the NLRB in Washington, D.C. This litigation process can take significantly longer than 42 days, and unions have long complained that employers deliberately pursue pre-election litigation to delay elections.

Within seven days of the stipulation or the decision, the employer must give the NLRB a list of eligible voters, with their home address. The list is turned over the union, and they must have it for ten days prior to the election date. Under these current rules, it is not feasible to schedule an election within three weeks of the filing of the petition.

The proposed changes do not on their face implement "quickie elections" 10 to 21 days from the filing of the petition. The stipulation process is not significantly changed, and the proposed rules do not shorten the 42 day rule, although the NLRB could (and probably will) issue a separate directive to shorten that time period without going through the rule making process.

The rules will shorten the time for an election when the union and employer can't agree on eligibility, because in most circumstances, there won't be a hearing. Usually, the dispute centers on a small number of employees, but the proposed rules will prevent a hearing if it involves less than 20% of the group of voters. Hearings will be scheduled seven days from the filing of the petition, and a detailed statement of the issues will have to be filed prior to the hearing. Failure to raise an issue or timely file the statement will prevent litigation of the issue. The practical effect will be to eliminate pre-election hearings.

The practical benefit to unions will be greater, however, from the proposed changes involving the voter eligibility list. The list would have to be turned over in two days, rather than seven, making it easier to conduct an election more quickly. More significantly, the employer will now have to give the union employee telephone numbers and email addresses, and provide detailed information on their work location and shift. This will make it easier for unions to contact employees and conduct their campaigns, and give unions additional grounds to challenge election losses if the information provided is incomplete or incorrect.

These rules will not go into effect immediately. There will be a sixty day comment period, and the NLRB may not publish the final rule until long after the expiration of the comment period. In December, the NLRB published a proposed rule requiring posting of organizing rights at all companies, but the final rule has yet to be published.

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