The National Labor Relations Board has proposed rule changes that would significantly reduce the time between the date the union requests an election and the date the NLRB conducts the election.  These changes, if implemented, would dramatically affect an employer’s ability to communicate with its employees before an NLRB election, and would give unions a significant advantage in organizing non-union employers.   

Among other things, the NLRB proposes to:

• Accelerate the initial hearing date following the filing of a union petition;
• Require the employer to disclose its position prior to or at the initial hearing;
• Significantly limit the employer’s ability to litigate issues – including those relating to supervisory status – before the election;
• Preclude the employer from appealing regional office decisions to the NLRB before the election; and
• Require that the employer provide the union with employees’ phone numbers and e-mail addresses in addition to their home addresses.

The likely result of the proposed new rules would be an NLRB election held within a few weeks of a union petition. This is far shorter than the current timeframe, in which the vast majority of initial elections are conducted within 56 days of a union petition.  In addition to the procedural changes that limit the employer’s rights, the shortened timeframe would severely restrict the employer’s ability to communicate its position and would compromise employees’ ability to get information from both sides to make an informed decision about union representation and collective bargaining.

Under the existing rules, unions won nearly 68% of NLRB elections in 2010.  In the healthcare industry the union win rate was 71% in 2010.  Under the proposed new rules, unions would undoubtedly win even more elections.  For this reason, healthcare employers should assess the employer relations environment at their facilities and their ability to communicate with employees, on short notice, about this important issue.

Jackson Lewis participated in the NLRB’s hearing on the proposed rule changes, and also participated in the hearing conducted by the House Committee on Education and the Workforce (“Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice”).  In addition, as counsel to Assisted Living Federation of America, Jackson Lewis is submitting comments on the NLRB’s proposed new rules.  The NLRB is expected to promulgate final rules, similar or identical to the proposed rules, later this year after the public comment period.

Thanks to Edward V. Jeffrey for this posting.