Philip Rosen (NYC), Michael Lotito (SF), Harold Weinrich (Washington DC), and Daniel Schudroff (NYC) wrote this post.
Earlier this afternoon, the National Labor Relations Board held a hearing on Chairman Mark Gaston Pearce’s Resolution pertaining to “Quickie Elections.” By a 2-1 margin, the Board voted to adopt the Resolution in its entirety. The Resolution eliminates some pre-election rights of employers in order to shorten the time before a representation election is held. Republican Member Brian Hayes was present and voted against the Resolution. Hayes also indicated he has no intention of resigning, putting to rest speculation about an issue that has been in the forefront of labor news lately.
Now that the vote is over, a final rule will be circulated among the three Board members and finalized before year end while the Board still has the Pearce-Becker majority. Based on comments made during the hearing, and in light of the substance of the Resolution, the time between the filing of representation petition and holding of an election will be reduced significantly. Our best current estimate is that the time will be reduced so that there may now be approximately 28-35 days between the filing of the election petition and the election. The timing of the election may increase, depending on the scheduling and duration of any pre-election hearing, the filing of briefs and the speed with which the Regional Director decides the case. There are also unknowns (depending both on the wording and administration of the final rule) that could reduce this timeframe even more. Also of note, one of the comments today indicated that the Board majority intends to consider the determination of an individual’s supervisory status to be a post-election matter, to be decided only if the issue is not moot after the election. This could be particularly problematic for employers.
Since employers will have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election, it is more important than ever for companies to consider a comprehensive preventive labor relations program, including such elements as (1) lawful employer communications about the company’s position on unions, (2) supervisory training to insure compliance with the law in discussions with employees before and during organizing, (3) bargaining unit analyses (for example, to determine who is a supervisor), and (4) a legal analysis and development of best HR practices reflecting recent legal issues (such as the NLRB’s initiative relating to protected concerted activity). Please do not hesitate to contact the Jackson Lewis attorney with whom you normally work for legal advice regarding the Board’s rules and options for employer consideration.