On November 30, 2011, the National Labor Relation Board voted 2-1 in favor of changing the National Labor Relations Act’s representation election proceedings. The final rule revises the process for union representation elections by shortening the time from the filing of the election petition until the actual vote is held, thereby making it easier for unions to win elections and more difficult for employers to communicate with employees prior to the vote.
On April 24, 2012, the U.S. Senate voted not to proceed on a resolution that would have disapproved the Board’s changes to the representation case procedures. Although a federal court in Washington, D.C. is still considering a challenge to the rule, the Board has set the amended election rule to take effect April 30.
Under the former rules, many contested representation issues including unit scope, supervisory status, and other voter eligibility questions were resolved in hearings, briefings, and appeals before the election. Typically, elections with contested issues were held six weeks or more after the election petition was filed. The NLRB recently reported a 38-day median time period between the filing and the election. Now, under the new rules, elections could take place in as little as 10 to 21 days after the election petition is filed.
Since employers will have less time to educate and communicate with their employees in advance of an election, they should consider educating employees now by lawfully expressing opinions and facts about union representation and the collective bargaining process. Employers should also listen to employee concerns and address them when lawfully possible. Finally, they should train supervisors to recognize union organizing efforts so they are not caught off guard.