TBA Law Blog


Posted by: Christy Gibson on Apr 10, 2014

By Jeb Gerth*

The first quarter of 2014 has been marked by significant activity in the world of organized labor, both in highly publicized organizing efforts by unions, and in activity with the current National Labor Relations Board (“NLRB”).  In the world of union organizing efforts, anyone watching national news a couple of months ago saw a hotly contested, and highly-publicized union election at Volkswagen in Chattanooga, Tennessee.  That election resulted in a defeat to the United Auto Workers Union, in a rather odd election where Volkswagen management was accused of colluding with UAW to coerce employees to accept representation, while many state politicians publicly opposed organizing efforts, sparking a post-election challenge to the results of the election.  This post-election challenge is still pending. 

Several weeks ago, the Regional Director of the NLRB in Chicago ruled Northwestern University football players are university “employees” within the meaning of the National Labor Relations Act, and are thus entitled to petition for an election to determine whether they can collectively bargain with the university.  This decision is being appealed to the full NLRB, but regardless of the outcome, there can be little question that union organizing will continue to catch the attention of the popular media, not just labor and employment lawyers, for the foreseeable future.

Less prevalent in the popular news media this year, but of likely broader potential impact to employers and unions, are the NLRB’s newly proposed “Quickie Election” rules, announced by the NLRB on February 5, 2014, sometimes referred to by critics as “ambush election” rules.  According to the NLRB, these new proposed rules are designed to speed up and streamline the process of conducting union elections.  This is not a new concept with the current NLRB.  In June 2011, the NLRB proposed this same set of rules.  The proposed rules were followed by a public comment period and two days of hearings after which a three-member board revised the rules to reflect the input provided.  The revised rules, supported by only two members of the NLRB, were quickly struck down by the U.S. District Court for the District of Columbia in May 2012 when the Court concluded that the NLRB, with only two participating members, lacked a quorum to adopt and implement new rules.  See Chamber of Commerce v. NLRB, 879 F. Supp. 2d 18 (D.D.C. 2012).  On January 22, 2014, the NLRB, now at “full strength” with five members, rescinded its “Quickie Election” rules consistent with the district court’s decision in Chamber of Commerce of the U.S. v. NLRB setting aside that rule.

Just weeks later on February 5, 2014, the NLRB announced its new proposed “Quickie Election” rules, which are identical to the “Quickie Election” rules proposed in June 2011.  Notably, the NLRB did not incorporate into its newly proposed rules the changes it incorporated after the nearly 66,000 comments it received in response to its 2011 proposed rules or the two days of hearings conducted.  It instead re-proposed the same original rules.  It has assured interested parties that it will reconsider the previously submitted comments, and has encouraged new, previously un-submitted comments only.  In support of this approach, NLRB Chairman Mark Gaston Pearce states the rules proposed in June 2011 “continue[] to best frame the issues and raise[] the appropriate concerns for public comment …. Reissuing the 2011 proposal is the most efficient and effective rulemaking process at this time.” 

The proposed election rules that are “back on the table” would, among other things:

·               Require that all pre-election hearings take place seven days after a petition, cutting the current 14-day period in half; and require elections to be held at the “earliest date practicable.”

·               Require the applicable employer to provide the union with an Excelsior list setting forth names, home addresses, phone numbers, email addresses, work locations, shifts, and job classifications of all employees eligible to vote in the election.  Absent the agreement of the union, the employer would be required to provide the Excelsior list within two days of the approval of an election agreement or Direction of Election.

·               Defer the employer’s right to request pre-election review of the Regional Director’s decision, until after the election.

·               Require the applicable employer to file with the NLRB a “statement of position” by the hearing date, setting out the employer’s position on multiple, identified legal issues, such as the composition and/or scope of the bargaining unit.  Any issues not addressed would be waived by the employer.  

Under the current rules, elections typically take place within about 39 days of the filing of the petition.  The new rules would speed that process up significantly, to something closer to two to three weeks. 

So would this “Quickie”  election procedure, which in part speeds up the process by moving many pre-election challenges to after the election, actually speed up the process or instead result in post-election delays due to increased litigation and post-election adjudication?  Additionally, what would the impact be on employee privacy were employers required to turn over employee phone numbers and email addresses, all upon two-days notice?  These issues have been raised in prior comments and will likely be raised again. 

The public comment period closed on April 7, 2014, and the NLRB is conducting hearings on the proposed rules during the week of April 7, 2014.  We will have to wait and see what changes, if any, the NLRB makes to the rules before adoption and implementation.  It appears that the NLRB is committed to implementing new rules as quickly as possible in light of its refusal to entertain congressional requests to extend the public comment period by 30 days.

Critics in Congress are not waiting to see what the NLRB ultimately proposes after the public comment period and hearings conclude.  On March 27, 2014, Republican lawmakers in the House and Senate announced the introduction of legislation to counteract the key provisions in the NLRB’s proposed rules in two separate bills, the “Workplace Democracy and Fairness Act” (HR 4320), and the “Employee Privacy Protection Act” (HR 4321).  Under the Workplace Democracy and Fairness Act, the timing of elections would have to be at least 35 days after the filing of the election petition (about the time it currently takes to hold an election), employers would have at least 14 days to prepare and challenge a union petition at a pre-election hearing, and the NLRB would be required to rule on pre-election challenges before certifying the results of an election.  Under the Employee Privacy Protection Act, employers would not be required to provide contact information for employees until seven days after the NLRB identified the appropriate bargaining unit, and even then, employees would be able to choose the contact information shared with the union, in contrast to the proposed rule requiring early disclosure of employee phone numbers and email addresses.

Lest there remain any doubt that all interested constituencies have the broader labor relations landscape in mind as battle lines on the proposed “Quickie Election” rules are drawn, consider the recent statement of Congressman George Miller of California, the senior Democrat on the House Education and the Workforce Committee:

 [The proposed Republican legislation] is a cynical effort to kill a modest, common sense rule that will give workers a fair, modern and standardized process for deciding whether they want to be represented by a union.  As we saw during the recent union vote at Volkswagen’s Chattanooga, Tenn., plant, the current process is flawed, allowing bad actors to interfere in elections and delay workers’ ability to exercise their fundamental rights.

 

Congressman Miller’s statement arguably concludes the “current process is flawed” based on his disagreement with the outcome, and his reference to “bad actors” sounds a bit like additional politicking in what was a highly politicized union election.  Setting party affiliations, political ideologies, and perspectives on labor relations aside, there can be no doubt that the current proposed rules have become a political battle line, and the ultimate result will be hotly contested in Congress or in court, regardless of the particular rules the NRLB ultimately adopts.

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*John “Jeb” Gerth is a partner at Waller Law Firm in Nashville, Tennessee. Jeb is the incoming Chair of the Labor & Employment Law Section. He is a graduate of University of Tennessee Law School. Jeb may be reached at jeb.gerth@wallerlaw.com or (615) 850-8180.