December 1, 2011
On November 30, 2011, the National Labor Relations Board voted 2-1 to move forward with revisions to its rules that will expedite union-organizing elections. The vote to revise the NLRB’s rules–supported by unions and Democrats but opposed by business groups, congressional Republicans, and the Board’s only current Republican member–clears the way for a final federal rule to be drafted that would usher in what is likely to be the most sweeping changes to the union-organizing election process since 1947. In particular, the new rules are expected to speed up significantly the timing of elections and to restrict opportunities for employers to challenge various aspects of election proceedings.
A significant concern voiced by many opponents of the proposed changes is that accelerated election schedules will deprive employees of adequate time to develop an informed opinion about the question of workplace representation. Under the new rules, elections could frequently be held in half the time provided under current rules–some have estimated they could occur in certain cases as quickly as ten days after a union files its certification petition. Since unions typically approach organizing efforts on a covert basis, working to protect the secrecy of their efforts until a certification petition is filed, employers already often have only a limited opportunity to respond directly to the union’s arguments prior to an election. Many critics of the proposed rules have noted that elections held on an even more expedited basis may effectively prevent employees from having time to ask important questions or fully explore their options and will preclude employers from having a meaningful opportunity to present counter-arguments to the union’s clandestine campaigning and promises. Thus, they observe that such expedited elections will largely silence employers and require employees to vote having only heard the union’s unchallenged assertions.
Another troubling aspect of the proposed rules is the impact of various provisions that would largely eliminate the opportunity for pre-election Board review of employer challenges to aspects of the election or to union conduct during the campaign. The revisions would additionally limit the rights of employers to pursue certain post-election appeals. By deferring legal challenges surrounding a proposed election until after the vote has taken place and limiting appeal rights, the new rules will reduce the opportunities for employers to raise and resolve issues that may impact the outcome of elections. Moreover, even when objections may still be raised after an election under the new rules, it will often prove difficult to isolate the impact of the objectionable decisions or conduct, much less to undo its effect.
The Board’s vote was the latest step in a contentious process that began in June of this year with publication of an even broader set of proposed changes that Democratic Board members characterized as necessary to streamline litigation and limit Board review in representation cases, thereby allowing the Board to conduct representation elections more quickly after the filing of a petition for an election. The proposal generated strong objections from Republican members of the Board and Congress and from the business community, with many characterizing it as an attempt to impose through the regulatory process changes that the administration had been unable to achieve legislatively, including through the failed "Employee Free Choice Act."
The Board received more than 65,000 public comments on the proposed rules, and in July it conducted a contentious two-day public meeting on the proposal. Responding in part to the proposal, Rep. John Kline (R), who chairs the House Education and the Workforce Committee, has introduced legislation that would mandate minimum time periods before NLRB representation case hearings and a 35-day minimum interval before balloting.
Since August of this year, the NLRB has operated with only three of its five seats filled. In an explanatory statement issued with the proposed resolution, NLRB Chairman and Democrat Mark Pearce acknowledged that the Board is likely to lose its quorum and authority to act at the end of the current congressional session in December, when the recess appointment of Democratic member Craig Becker expires. Significantly, the U.S. Supreme Court held last year in New Process Steel LP v. NLRB that the authority of the five-seat Board to issue final decisions could not be delegated to a panel consisting of less than a quorum of three members. According to the Chairman’s statement, the "limited nature" of the revised, more narrow proposed rule changes is intended "to make it possible for all members of the Board to consider [the amendments] thoroughly in the time remaining for prompt action on the rule." At the November 30 meeting, NLRB member Brian Hayes, the sole remaining Republican on the Board, called this effort to pass significant rule changes before the Board’s quorum is lost a "preemptive and precipitous action by two Board members."
Notwithstanding the objections of Hayes, the Board voted on the resolution without having before it a formal draft of the revised proposed rule. Once drafted, the revised rules will still have to be approved by a final Board vote in order to be enacted prior to the expected loss of a quorum later this month.
These changes to union election rules highlight the critical need for employers to be vigilant in watching for the signs of union organizing efforts, maintain open and strong communications with workers, and have a well-developed plan for responding to the first sign of union activity. Given the compressed opportunity to convey their side of the story and limited options for challenging election conduct, employers who are not prepared in advance risk being caught off guard by a request for a union election and hamstrung in their ability to respond by the NLRB’s revised rules.
Gibson, Dunn & Crutcher’s labor and employment lawyers have decades of experience in helping the nation’s leading employers anticipate and respond to union organizing efforts and other facets of the complex and changing labor and employment landscape. For assistance or more information, please contact the Gibson Dunn attorney with whom you work or any of the following members of the Labor and Employment Practice:
Christopher J. Martin – Co-Chair, Palo Alto (650-849-5305, email@example.com)
Eugene Scalia – Co-Chair, Washington, D.C. (202-955-8206, firstname.lastname@example.org)
William J. Kilberg P.C. – Washington, D.C. (202-955-8573, email@example.com)
Jason C. Schwartz – Washington, D.C. (202-955-8242, firstname.lastname@example.org)
Karl G. Nelson – Dallas (214-698-3203, email@example.com)
Jessica Brown – Denver (303-298-5944, firstname.lastname@example.org)
Scott A. Kruse – Los Angeles (213-229-7970, email@example.com)
Michele L. Maryott – Orange County (949-451-3945, firstname.lastname@example.org)
Jesse A. Cripps – Los Angeles (213-229-7792, email@example.com)
© 2011 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.