Sweeping changes in store for unions and employers

By Rich Meneghello

The Daily Record Newswire

Dramatic changes are in store for the nation's employers because of some controversial National Labor Relations Board actions. These changes are bound to transform the landscape of union organizing, and will likely alter the face of traditional labor as we now know it. Massive changes are due April 30.

Many employers surely remember the specter of "card check," also known as the Employee Free Choice Act -- a piece of proposed legislation intended to aid union drives. The economic collapse of 2008 and the midterm elections of 2010 spelled doom for traditional labor's hopes of passing that into law.

Instead, unions turned to the rule-making power of the NLRB itself. In late November, the board announced its intent to proceed with new rules that would accomplish much of what card check was supposed to. Because the term of one of the union-supporting board members was set to expire at the end of 2011, most observers believed the rule would be published before 2012 began.

Sure enough, while most employers were distracted by the rush of the holidays and the end of the year, the board on Dec. 22 published a final rule that implemented sweeping changes to its long-standing representation election procedures. As a result, employers and unions will now need to become familiar with "quickie elections."

There are eight specific changes to the rules governing union workplace organizing and elections. The Democratic majority believes that the amendments are necessary to reduce unnecessary litigation in representation cases, thereby enabling the board to better fulfill its duty to expeditiously resolve questions concerning representation.

Employers, however, have long contended that the primary purpose behind these changes is to substantially accelerate the election process. They say this potentially deprives them of the right to effectively combat an organizing drive and exponentially increases the chances that an election ends in favor of the union.

Nevertheless, most directed elections will now occur within 15-20 days of the date of organizing petition. Under the previous rules, the median period between petition and election was 38 days.

Further, the new rules eliminate the right to file pre-election requests to object to the legitimacy of an election or to challenge voter eligibility issues. Instead, all such requests will be deferred until after the proceedings.

Taken together, these changes represent the most sweeping reforms to representation election procedures since the inception of the National Labor Relations Act. It's significant to note that these rules for streamlining the process apply only to elections for certifying unions; they do not cover decertification elections when employees attempt to rid themselves of union representation.

If there is any good news for employers, it's that the new rules do not include some of the initially proposed amendments that had concerned many business advocates, including electronic petition filing, mandatory Statements of Position, and employer submissions of employee email addresses and phone numbers to the union.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workforce have filed a complaint against the NLRB in federal court, seeking to invalidate the final rule and to enjoin the board from enforcing it. Also, various members of Congress have announced that they will challenge the rule pursuant to the Congressional Review Act, which could stop implementation.

It is quite possible that, as with several other controversial actions by the NLRB, the final rule could be delayed for a period of time, perhaps while a compromise is worked out. Absent judicial or legislative intervention, however, the final rule will take effect on April 30.

A compressed election cycle places most employers at a serious disadvantage when it comes to educating their employees on why they might want to vote against the union, and also makes it much more difficult for employers to train their supervisors on how to lawfully respond to organizing activity.

It also leaves employees with less time to consider all the facts and make informed choices as to whether they want to be represented by a union.

Employers that believe they may be targets of organizing drives may wish to become much more proactive about employee education and supervisor training, and not simply wait until an actual petition is presented. It is fair to assume that unions will intensify their organizing efforts in the coming months in order to be prepared with signed authorization cards when April 30 arrives.


Rich Meneghello, the managing partner of the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or rmeneghello@laborlawyers.com, or follow him on Twitter - @pdxlaborlawyer.

Published: Wed, Jan 11, 2012