Recent Nlrb Actions Give Boost to Union Organizing
| Jurisdiction | United States,Federal |
| Citation | Vol. 44 No. 4 Pg. 29 |
| Pages | 29 |
| Publication year | 2015 |
Articles
Labor and Employment Law
Recent NLRB Actions Give Boost to Union Organizing
By John M. Husband, Bradford Williams.
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
Coordinating Editor
John M. Husband, Denver, of Holland & Hart LLP—(303) 295-8228, jhusband@hollandhart.comAbout the Authors
About the Authors
John M. Husband is a partner in Holland & Hart, LLP's Labor & Employment practice group. He is a Fellow of the College of Labor and Employment Lawyers and has a nationally recognized labor and employment practice. Bradford J. Williams is an associate in Holland & Hart, LLPs Labor & Employment practice group. He was named a Colorado Super Lawyers® Rising Star in 2014 and 2015 and has extensive experience defending employers in labor and employment litigation.
This article analyzes recent NLRB actions, including new "quickie" election rules and recent Board decisions addressing "micro" bargaining units and access to employers' e-mail systems that make it easier for unions to organize and win representation elections. It suggests how employers may respond.
On April 14, 2015, new National Labor Relations Board (NLRB or Board) rules go into effect that will significantly expedite union representation elections. Coupled with recent Board decisions permitting employees to access their employers' e-mail systems for purposes of organizing, and sanctioning the certification of "micro" bargaining units composed of just a few employees, these rules are expected to significantly boost union membership.
Supporters see a chance to lift union membership rates from historic lows. Just 11.1% of all wage and salary workers in the United States were union members in 2014, compared to 20.1% in 1983, the first year for which comparable data are available.[1] The union membership rate in Colorado in 2014 was even lower at just 9.5%.[2]
That trend may now reverse. Although union coffers have drained due to dwindling membership, the NLRB's recent actions will make union organizing easier. Each of the Board's controversial actions was passed on a strict party-line vote, and employers are gearing up to battle an expected organizing surge both in the courts and on the production floor.
Quickie Election Rules
On December 15, 2014, the NLRB published final rules to govern union representation elections.[3] These rules become effective on April 14, 2015.[4] Derided by critics as "quickie" or "ambush" election rules, the rules significantly shorten the period of time between a petition for a representation election and a vote. They may also deprive employers of their First Amendment and statutory rights to fully communicate with employees about the desirability of union representation before an election. Unions claim that the rules eliminate stalling tactics and frivolous challenges to election procedures.
Under the National Labor Relations Act (NLRA), a union generally does not become the exclusive bargaining representative for a group of employees unless it wins a secret ballot election. The Act provides that a petition for an election must be filed; a pre-election hearing must be held to determine whether a "question of representation" exists; an election by secret ballot must be conducted; and the election results must be certified.[5] Under previous case law, rules, and informal practices developed by the Board over decades, this process has generally taken five or more weeks. For instance, even after the pre-election hearing and direction of the election, the NLRB's regional director typically only schedules the election for twenty-five to thirty days after the decision to allow time for interlocutory appeals to the Board.[6] During this period, employers typically communicate with their employees about the desirability of union representation.
The NLRB first proposed its quickie election rules to expedite this process in June 2011.[7] Employer reaction was swift and severe. A watered-down version of the final rules was published in December 2011, but a federal court invalidated the rules in May 2012—just two weeks after they became effective—because the Board had lacked a statutorily mandated quorum in passing the rules.[8] The district court presciently noted that "nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so."[9]
The Board did so in February 2014. The re-proposed rules were identical to the rules originally proposed in June 2011, and the Board made the rules final in December 2014. Although the final rules are highly detailed—filling 183 pages of the Federal Register, including comments—highlights include multiple changes that shorten the representation election process:
1. The pre-election hearing will generally be scheduled to open within eight days from the notice of hearing; hearings will generally not be continued.
2. Employers are required to submit a written position statement one day before the pre-election hearing; issues not raised are waived; and the hearing is limited to determining whether a "question of representation" exists.
3. Most questions involving voter eligibility will not be addressed at the pre-election hearing; they will be resolved later.
4. Post-hearing briefs will generally not be permitted.
5. Elections will no longer be automatically stayed for twenty-five to thirty days after the direction of the election to allow for interlocutory appeals to the Board.
6. Employers must provide a list of employees within two days of the direction of election (rather than the previous seven).
7. Requests for Board review of the regional director's actions will not stay the counting of ballots.[10]
The new rules also require employers to give employees' personal e-mail addresses and phone numbers to the union before an election.[11] The rules will expedite most representation elections— perhaps to fifteen or fewer days between petition and voting—but they will still permit unions to unilaterally delay elections by filing "blocking" charges alleging unfair labor practices.[12] The rules clarify only that unions must now make an offer of proof to support such charges.[13]
By shortening the period between petition and voting, the rules significantly limit employers' ability to effectively counter union organizing campaigns. They may also violate employers' First Amendment rights and other free speech protections codified in...
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