Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As one of the final speakers concluding two days of public meetings to discuss the NLRB’s proposed changes to its election procedures, Littler attorney David Kadela stated that the proposed changes “would unduly and severely cut into the time that employers have to communicate with employees during election campaigns, and establish unnecessary procedural requirements that would stack the deck against and increase the burdens upon employers.” Kadela joined more than 60 other participants in the two-day event, many of whom articulated the same profound faults with the proposed expedited election procedures. Although a number of union supporters were on hand to speak in favor of the proposed rule, members of the business community and their representatives urged the Board to reconsider its proposal, which was even the subject of a recent Congressional hearing. The most vehement criticisms of the proposal are discussed below.
A Solution in Search of a Problem
Many testified that the vast majority of elections are held pursuant to a stipulated agreement, and that current procedures do not promote excessive and unnecessary delays. Several speakers claimed that any deviations from this rule should not result in a wholesale change to the entire election process. As Kadela noted during his testimony, the proposed changes would reportedly shorten the time from the filing of a petition to an election from a median of 38 days to between 10 and 21 days. Doing so dramatically diminishes the time and opportunity for an employer to educate employees on its position before an election.
The Board’s Notice of Proposed Rulemaking (NPRM) states that the intent of the proposed changes is to “permit questions concerning representation to be resolved both quickly and fairly.” Kadela explained, however, that the practical effect of the rule addresses the first goal only. “While promoting speed, they would undermine employer free speech rights and put at risk the fairness and accuracy of elections. The Act mandates that the perceived need for speed must yield to these other considerations.” Kadela testified that the vast majority of employers comply with the NLRA during organizing drives, and that their “focus is on communicating accurate factual information to employees on what union representation would mean.” Significantly shortening this timeframe therefore not only limits an employer’s due process rights, but also an employee’s ability to make an informed decision. “If the amount of time employees have to consider information is cut by as much as or more than half, as the proposed amendments would do, it will create a very real risk that when employees enter the voting booth they will not have been provided with all the information they need to cast an informed ballot. Speed, for the sake of speed, does not warrant taking that risk.”
Others noted that the Board’s decision to pursue such a substantive rule runs contrary to President Obama’s recent Executive Order directing agencies to consider the potential cost and burden of new regulations on businesses.
20% Rule Could Result in Employer Liability, Uncertainty about Bargaining Unit
The proposal states that litigation of eligibility issues raised by the parties involving less than 20% of the bargaining unit would be deferred until after the election. Among other problems with this proposal is that disputes regarding who is eligible to vote in the election in the first place – i.e., who is a proper member of the bargaining unit, and who is a supervisor – would often be resolved after the election itself. One of the many problems with this eventuality is that an employer risks committing an unfair labor practice if an employee later classified as a supervisor discusses election matters with an employee prior to the election.
In addition, as stated in Kadela’s written testimony, “setting the bar for considering the eligibility of employees to vote in an election at 20% of the proposed unit is too high. It carries with it a risk that employees may be misled as to scope of the bargaining unit.”
Issues Included in Statement of Position
As it is currently written, the proposed rule would cause an employer to waive any issue not raised in its initial Statement of Position. The proposed shortened timeframe between the filing of a petition and the pre-election hearing will necessarily force practitioners – who have not had sufficient time to investigate every possible claim – to raise a number of issues in the Statement of Position to preserve any future right to challenge the issue. Doing so will therefore increase – not reduce – potential litigation. Moreover, according to Kadela’s statement, the proposed limitations on employers’ ability to raise challenges infringers on their due process rights:
The provision seems mainly intended to bar an employer from contesting the appropriateness of a petitioned-for-unit. Besides infringing on employers’ due process rights, this provision also may well violate the Board’s obligation to determine the unit that is appropriate. Under the proposed regulations, if an employer fails to take a position regarding a petitioned-for-unit, the petitioner is required to explain why the unit is appropriate, but is not required to submit evidence supporting its position. As a result, the extent to which employees have organized could be argued to have a controlling effect on unit determinations in such cases, in violation of Section 9(c)(5) of the Act.
Process Made More Adversarial
The change to a “court litigation model” involving the issuance of complaints, answers, summary judgments, and pre-election and post-election offers of proof based on the Federal Rules of Civil Procedure represents an adversarial model that is inappropriate for resolving questions concerning representation. In addition, the relative inexperience of hearing officers may prevent them from properly determining whether a party has presented sufficient information in an offer of proof to establish that a genuine issue of material fact exists. Moreover, it will be logistically difficult for large employers or those with multiple locations to sufficiently prepare for a post-election offer of proof to support any objections to the bargaining unit.
Infringement on Employee Privacy
The proposal requires employers to produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing. Employers would have to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available. Many speakers argued that this requirement was an invasion of employee privacy. In addition, since employees do not have a statutory right to use their employer’s email system, the arguments followed that unions should not be able to as well.
Moreover, the burden of compiling and producing the information in two days’ time may not be feasible for many employers, and it is unclear what constitutes the “extraordinary circumstances” needed to obtain an extension.
The Board asked participants to comment on blocking charges, the practice whereby an election is postponed while an unfair labor practice charge is filed alleging conduct that would, if proven, have a tendency to interfere with the free choice of employees in an election. Many speakers claimed that this policy is often the cause of election delays, which can be frustrating for employees as well as employers. Therefore, several participants stated, any proposed rule instituting expedited election procedures should accompany a change to the blocking charge policy. Specifically, Kadela advocates in his testimony that Regional Directors be required to continue to process petitions unless and until the charging party “presents sufficient evidence to establish probable cause for the charge. At that point, Regional Directors should have the discretion, based upon the evidence presented by the charging party, to continue processing the petition or hold it in abeyance.”
Overall, a theme that was repeated throughout the two-day process was that that given the scope and magnitude of this proposed rule, the Board needs to either make substantial revisions to its proposal or abandon it altogether.
A copy of David Kadela’s statement can be found here. (pdf)
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