Thursday, December 01, 2011

NLRB Changes Election Rules - Much Ado About Something

The Obama Labor Board has been hard at work for organized labor before the term of its most infamous member, Craig Becker, expires at the end of the year. At issue is the all important time period between the filing of a petition to represent employees by a union and the election wherein employees can vote on whether or not to be represented. Currently, the period is six weeks (42 days) giving both sides ample opportunity to make their respective cases.

If you are interested in the blow by blow political bruhaha, you can find it here:

If you are interested in the bottom line, here it is: The new rules prevent employers from challenging certain aspects of union elections before the voting occurs, including whether certain workers are eligible to vote and be part of a bargaining unit. Oftentimes, employers or unions argue that certain workers should be classified as supervisors, and therefore be ineligible to unionize. These issues have always been resolved before voting for the obvious reason - you only want those eligible to actually vote.

It doesn't sound like much of a problem, but it is. For example, if an employer allows an employee to vote who is later determined to be a supervisor under the National Labor Relations Act the election can often be set aside and rerun at additional time and expense. This puts employers into a tough position -- to vote or not vote an employee, knowing that if they permit an employee to vote who is later determined to be a supervisor the election may have to be rerun. On the other hand, if an employer prevents an employee believed to be a supervisor from voting and who is later determined not to be a supervisor, they may face unfair labor practice charges and a rerun election. Not a good position to be in. The Labor Board doesn't care.

What is more troubling is what is not said -- the number of days between the filing of a petition by a union for representation and the election. For many years it was 50 days. It was then reduced to 42 days. Implications are Regional Directors of the Labor Board may reduce the number of days again on their own motion. There are ways of forcing the issue of time and I have done so many times. For example, if the Labor Board is unreasonable as to the number of days employees have to hear both sides or on the dates and times of the election I have told them. "Fine. But you won't be having the election on employer property." They hate that and I have yet to have to hold an election offsite. There are other tricks of the trade but just know this is moving in the wrong direction and depending on what the final rules provide it will mean employers have less time to make their case to employees once a union is involved.

More as we know more . . .



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