The Corner

Major Changes to NLRB Rules Announced Today

Today the NLRB announced proposed changes to union-election procedures, the effects of which will dwarf the importance of the Boeing case and substantially increase the number of unionized workplaces. 

In a nutshell, the NLRB’s proposed rules would implement “quickie elections,” a process that would allow unions to organize a workplace as easily as they could have had the Employee Free Choice Act (also known as “card check”) passed.

This is a very big deal. Union representation of the private-sector workforce has fallen from 35 percent 50 years ago to just 6.9 percent today. Implementation of the NLRB’s proposed rule changes would significantly increase the latter percentage. Here’s why:

The proposed rules would substantially shorten the time period between the filing of a petition for a union-representation election and the actual conduct of the election. Right now, initial elections normally are conducted within 38–40 days of the filing of a petition by the union. Since the typical employer is completely oblivious to the fact that a union has been organizing his workforce for the last 6–8 months, the filing of the representation petition is usually the first time the employer becomes aware of the unionization campaign. The employer then uses the 38–40 days between the filing of the petition and the election to make his case to his employees.

That’s not much time for the employer to get his message out. Indeed, in 2009 and 2010 unions won approximately 68 percent of elections (this does not include the number of petitions withdrawn by unions). Yet the “quickie election” rules proposed by the NLRB will shorten the time frame to a mere 10 –20 days. Make absolutely no mistake: That’s not enough time for even the largest and most sophisticated employers to counter what the union has been telling employees while organizing them for the last 6–8 months. The union win rate will far exceed 68 percent. In fact, it’s likely that many employers will choose to not even go through the expense of an election that he’s sure to lose, but will simply voluntarily recognize the union upon a showing of authorization cards.

Keep in mind also that the NLRB is poised to decide Specialty Healthcare, the practical outcome of which could allow unions to cherry-pick for participation in union elections only those employees the union is certain will vote in favor of representation. Combined with the proposed new election rules, the decision would ease unionization of workplaces in every industry in every state throughout the country.

The proposed rule has several other facets that affect an employer’s ability to make his case to his employees. I will discuss them over the next several weeks before the rules become effective. I will also discuss a number of other major developments in labor law, including but not limited to the Department of Labor’s new disclosure requirements for employers (and their counsel) as well as a case before the NLRB that may render certain employee arbitration agreements invalid.

EFCA died in the senate. But the NLRB, through decision and rulemaking, is in the process of effectuating EFCA’s essential goals without the need for congressional action.

— Peter Kirsanow is a former member of the National Labor Relations Board.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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