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New NLRB Rules for Union Organizing

NLRB PUSHES NEW RULES TO FACILITATE UNIONIZATION

To form a union, workers must file a petition with the NLRB which then conducts a secret-ballot election to ensure that the majority of employees are on board. According to a recent New York Times article this process took an average of 57 days in 2008. Union says this gives employers too much time to discourage employees from voting for a union.

The NLRB’s proposed “Procedural Changes to the NLRB Representation Process” are commonsense proposals designed to ensure a fair process for workers who want to vote on whether to form a union.  By cleaning up and modernizing a system paralyzed by delays, bureaucracy, and wasteful litigation, the proposed changes aim to provide stability and a level playing field.

  • Reduces opportunities for unnecessary delays and wasteful litigation:
    • Requires the parties to state their positions and make an offer of proof as to any issues they want to litigate or the issue is waived.
    • Discourages the litigation of frivolous and irrelevant issues by permitting litigation only if the offers of proof raise a genuine dispute as to a material fact.
    • Defers, until after workers have a chance to vote, litigation of eligibility issues which affect fewer than 20% of bargaining unit employees.
    • Provides for prompt and predictable scheduling of hearings, both pre-election (7 days) and post-election (14 days), if the parties cannot reach agreement.

 

    • Eliminates current chokepoints so workers who want to vote can vote:
      • Elections are scheduled “for the earliest date practicable.”
      • No Board review pre-election [eliminates the current 25 day waiting period to file an appeal.
      • Post-election Board review of Regional Director decisions is discretionary

 

  • Modernizes contact information currently required to be provided by the employer to the petitioning union:
    • Includes employees’ email addresses and phone numbers, if available, in order to encourage an informed electorate.
    • Adds work shifts, locations, and job classification, in order to facilitate prompt resolution of voter eligibility issues.
    • Requires electronic submission to the union, within 2 days instead of 7 (i.e., after the election agreement or direction or election).

 

  • Promotes the use of electronic technology to achieve economies of time and resources for the parties and the Board.

 

What the rule does not do:

  • Require that elections be held within a specific time period.
  • Deny opportunities for employers to communicate with workers 24/7 at work.
  • Incorporate any provisions of the Employee Free Choice Act.
  • Fix inadequate, weak NLRB remedies or promote first contract bargaining.
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