NLRB Votes to Pursue Snap Elections
On Wednesday, November 30, the Board adopted a resolution incorporating some of its prior proposals for “quickie” or “snap” elections. While the Board did not adopt its previously proposed rule, it did vote to accelerate the voting process for union elections.
As presently constituted, the Board has only three members, two of whom are union attorneys appointed by President Obama. And of these two union attorneys, one was a recess appointment whose term expires at the end of 2011. Therefore, beginning next year, the Board will only have two members left—and without a quorum of at least 3 members, the Board cannot enforce its decisions. Any wonder why the current Board is rushing to get such unpopular rules, such as “snap elections,” passed?
Danger: New Board Rules Ahead
The new “snap” or “quickie” election rule must be drafted and approved by the Board. The new rule will:
- Empower the hearing officer the authority to limit evidence to be introduced at the repre
- sentation hearing;
- Allow the submission of a post-hearing brief only at the discretion of the hearing officer;
- Eliminate the employer’s right to seek review of the Regional Director’s pre-election rulings;
- Eliminate the present requirement that the Regional Director normally not schedule an election until 25 to 30 days after the direction of the election; and
- Make post-election Board review of Regional Director’s and ALJ’s post-election disputes discretionary.
Fortunately for employers, the Board resolution did not include parts of the earlier proposed rule including a the requirement that employers make available the email address and telephone numbers of employees on the Excelsior list, and change the period of filing for the Excelsior list from seven to two days.
Bottom Line for Employers
If the Snap Election Rule as presented above is adopted, it will significantly aid the unions and union representatives in their attempts to organize employees. Employers will have considerable less time to communicate their positions on unionization to employees.
These proposed changes also hurt employees, who will now be denied the opportunity to learn what unions can, and cannot, do.
If this proposed rule is adopted, the National Labor Relations Board will do what the United States Congress could not when it failed to pass the union’s “card check” bill: Attempt to reverse a decade-long decline in private sector union membership—at the expense of both employers and employees.
-Bud O’Donnell specializes in matters before the National Labor Relations Board including representation elections and unfair labor practice hearings. He also advises clients on plant closings and relocation issues, and has represented clients in collective bargaining, grievance arbitration and strike consultation in numerous industries.