NLRB rule makes it easier for unions to organize

Historically, the holidays are a quiet time of year in the workforce as employees take time to enjoy the season. However, this year was different.

Although many Idaho employers might not recognize it yet, this recent holiday season dropped a lump of coal in employers’ stockings when the National Labor Relations Board issued new ambush election rules. The rules will make it significantly more difficult for employers, especially small employers, to respond to union campaigns.

As expected, the NLRB made good on a resolution to drastically change representation case handling rules relating to union elections, making union organizing easier. On December 21, 2011, the agency issued Final NLRB Election Rules, with an effective date of April 30, 2012. The U.S. Chamber of Commerce and the Coalition for a Democratic workplace immediately sued to block implementation of these rules. In their lawsuit, the industry groups assert that the NLRB violated its mandatory rule-makings processes in a “hasty action” in advance of the expiration of a Board member’s recess appointment.

The final rules will alter the handling of a representation case with the alleged purpose being, according to the NLRB, “… to reduce unnecessary litigation in representation cases and thereby better enable the Board to fulfill its duty to expeditiously resolve questions concerning representation.” To accomplish this, however, the proposed rules appear to cede the Board’s statutory authority and defer the determination of the appropriate bargaining unit to the NLRB’s regional offices.

The eight changes to the rules can be summarized as requiring the employer to accept the petitioned-for bargaining unit, regardless of whether it is appropriate or feasible for the employer, or face an election on a much shorter timeframe.

Here is a snapshot of the changes to the rules:

• Changes 1 and 2 effectively give an NLRB hearing officer the discretion and authority to determine whether there should be a hearing about the appropriateness of the composition of a bargaining unit—a group of employees represented by the union if the union wins the election. Under the new rules, if the NLRB region decides that the employer’s contentions about what constitutes an appropriate unit lack merit, there will be no hearing or the hearing will be limited.

• Change 3: The hearing officer now has discretion over the filing of post-hearing briefs. While this is intended to reduce the time that elapses between the filing of a petition for an election and the holding of the election, it limits a party’s ability to ensure that all relevant legal authority is considered and creates a record for post-election litigation or appeals.

• Change 4: A party’s right to file a pre-election request for review of a regional director’s decision until after the election is eliminated. This means that the Board itself will not become involved in a representation case until after an election has been held.

• Change 5: The new rules eliminate, “… the recommendation that the regional director ordinarily not schedule an election sooner than 25 days after the decision and direction of election to give time to the Board to rule on a pre-election request for review.”

• Change 6: The circumstances in which a special appeal can be filed will be narrowed, eliminating an employer’s opportunity to make a special appeal to the NLRB prior to the election.

• Change 7: Post-election review as a matter of right is eliminated. This places even more authority in the regional director’s hands to decide disputes and allows the Board to simply refuse to hear an appeal.

• Change 8: Parts of the existing regulations deemed redundant or rendered unnecessary because of the changes made by the new rules are eliminated.

Perhaps most significant are changes four and five. Read together, they essentially state that if an employer challenges the appropriateness of the petitioned-for bargaining unit, rather than voluntarily enters into an agreement with the union about the election, the Regional Director can set an election in less than 25 days and there will be no right to appeal until after the vote has occurred.

What does this mean to Idaho employers? It could effectively punish employers who cannot operationally accept the union’s proposed bargaining unit but instead seek a unit that fits within the organizational structure of the employer. Employers will be forced to accept the proposed unit and get more time to communicate or campaign with employees or risk challenging the unit and having the vote held much sooner.

In short, the rules add significant penalties for Idaho employers who challenge the appropriateness of a bargaining unit proposed by a union. The union can now petition for the smallest unit it wants and is almost guaranteed it will get a vote on it, regardless of whether such a unit makes sense within the employer’s organizational structure.

Although Idaho is a right-to-work jurisdiction, union organizing is still an operational and financial threat to local businesses—particularly those in industries where representation is prevalent. These new rules for union representation cases are a lump of coal employers did not need during this holiday season, or any other time for that matter. Of course, the litigation filed by the industry groups will play an important part in how this plays out.

Anne B. Wilde is an employment and ERISA employee benefits attorney.  She is the Principal of The HR & Benefits Advisor, PLLC, which advises employers and plan sponsors.  Anne can be reached at anne@TheHRandBenefitsAdvisor.com or www.TheHRandBenefitsAdvisor.com.

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