The National Labor Relations Board (“Board” or “NLRB”) has issued a final rule revising union representation case procedures to unions’ advantage. As anticipated, the final rule is nearly identical to proposed rules issued in February 2014 and in June 2011. The rule is published in the Dec. 15, 2014, issue of the Federal Register and is due to take effect on April 14, 2015. AGC and AGC-supported coalitions opposed the rulemaking and are exploring efforts to block implementation.
The rule – often called the “quickie election” or “ambush election” rule – expedites the process in cases where a union files a petition for an election to become the exclusive collective bargaining representative of a unit of workers. Among the numerous changes rendered, the rule:
- shortens the time between the union’s filing of the petition for an election and the holding of any pre-election hearing;
- limits issues to be litigated at a pre-election hearing to questions concerning the appropriateness of the unit and defers disputes over voter eligibility until after the election;
- requires employers to file position statements on a variety of issues before a hearing;
- expands the information that employers must give unions to include e-mail addresses and telephone numbers; and
- renders post-election review by the Board discretionary.
The Board asserts that the rule removes “unnecessary barriers to the fair and expeditious resolution of representation cases” by making procedures simpler, more transparent, and uniform across regions. It has published a fact sheet on the rule, including a chart comparing current procedures to new procedures.
Regardless of the true objective, the effect of the rule is to render union organizing easier by limiting employers’ opportunity to communicate with workers, limiting employees’ opportunity to gather and consider information about union representation, and enhancing unions’ modes of communication with workers. In the construction industry – where most union contractors operate under “prehire” or “8(f)” collective bargaining agreements – unions may use the changes not only to organize open-shop contractors but to limit union contractors’ flexibility by converting from 8(f) to 9(a) relationships. (For an explanation of the difference between 8(f) and 9(a) relationships, go to AGC’s online library of Labor & HR Topical Resources, the select the main category “Collective Bargaining” and the subcategory “Collective Bargaining: 8(f) vs. 9(a).”)
The Coalition for a Democratic Workplace, of which AGC is a member, plans to file a legal challenge in the coming days. AGC and others in the business community are contemplating additional avenues for preventing implementation of the rule, such as seeking Congressional action, and will alert members of any changes in the status of the rule.
In the meantime, employers are well-advised to examine employee relations, identify and promptly remedy problems. For open-shop contractors, this includes reviewing wages and benefits to ensure they are competitive. Union contractors may not alter wages, hours, and terms of conditions of employment without first bargaining with the union, but should still examine and identify problems to address in bargaining. They should also assess relationships with and among the various local unions in the area, taking heed of any discord that could lead one union to file an election petition in an effort to thwart a rival union. All employers should also keep an eye out for organizing activity and train statutory supervisors about what they lawfully may and may not do when such activity is underway. (For information on supervisor “do’s and don’ts,” visit the Labor & HR Topical Resources library, and select the main category “Unions/NLRA” and the subcategory “Union Organizing Campaigns & Representation Elections.”)
For more information, contact Denise Gold, Associate General Counsel, at (703) 837-5326 or firstname.lastname@example.org.