On June 21, 2011, the National Labor Relations Board (NLRB) proposed major changes to the procedures by which union certification elections are conducted. The principal effect of these changes will be to substantially shorten the time period between union organizers filing a petition with the NLRB and the actual date of a certification election. As a result, it may be more difficult for employers to respond to organizing efforts.
Currently, the median time between the filing of a petition and an election is thirty-eight days. Under existing rules, employers may seek pre-election review by the NLRB of decisions made by the agency’s regional directors. This process typically takes between twenty-five and twenty-eight days. The proposed rule changes will eliminate an employer’s right to seek pre-election review. Instead, they will force an election within “ten to twenty-one days after the filing” of a petition. Further, employers will be required to present a “statement of position” to the NLRB’s regional office within seven days of the petition’s filing, and will be precluded from litigating any objections not raised in that position statement.
Critics of the proposed rules contend that they represent a back-door attempt to accomplish what failed card-check legislation would have done—that is, to permit unions to ambush employers. Union organizers typically are in contact with employees for months prior to the filing of a petition. Employers, by contrast, have only the time between the filing of the petition and the election to make their case in response. By cutting that time period to as little as ten days, the NLRB’s proposed rule changes may make it more difficult for employers to communicate an effective response to the union’s message.
In addition, the new requirement that employers submit a position statement within days of the petition’s filing may make it more difficult for smaller employers—who may not be represented by labor counsel—to effectively preserve legal objections.
The proposed rule changes are subject to a sixty-day public comment period, at which point the NLRB will have seventy-five days to issue final rules. The proposed rule changes, as published in the Federal Register, are available here: http://www.federalregister.gov/articles/2011/06/22/2011-15307/representation-case-procedures. Once these rule changes take effect, it will be even more imperative that employers have a union response plan in place before receiving notice that a petition has been filed.