On June 21, 2011, the National Labor Relations Board (“NLRB” or “Board”) proposed changes to its secret ballot election regulations (“Speedy Election Rules”). The Administrative Procedure Act (“APA”) Notice and Comment period resulted in 65,000 public comments.

In early December 2011, the NLRB held two short hearings. A limited number of speakers were given five minutes each to express their concerns. On December 22, 2011, the Board, in anticipation of losing its quorum, acted quickly, and its remaining members voted 2 to 1, along party lines, to adopt the Speedy Election Rules. These regulatory changes are to become effective April 30, 2012 (the same date the NLRB Employee Rights Poster Regulation is tentatively scheduled to go into effect). Simultaneous with the NLRB’s adoption of its Speedy Election Rules, the U.S. Chamber of Commerce filed suit in the United States District Court for the District of Columbia, seeking to have the rules enjoined and declared unlawful. (The NLRB’s Posting Rule remains in litigation in the same Court.)

The Speedy Election Rules are part of a continuing effort by the Obama Administration to amend or reshape the National Labor Relations Act (“NLRA”) in favor of union organizing. That initial effort relied upon passage of the Employee Free Choice Act (“EFCA”). The EFCA sought to radically alter the government procedures regulating union representation elections in the private sector and collective bargaining, in favor of unions. In sum, the EFCA sought to:

1. Provide an alternative to NLRB secret ballot elections by certifying union representation on the basis of a simple “card check” majority;
2. Replace initial contract negotiations with time-restricted government-imposed interest arbitration; and
3. Increase penalties for employers accused of unfair labor practices directed against pro-union employees during a union organizing drive.

While the EFCA is presently dead in Congress, the activist majority of the NLRB chose to exercise the NLRB’s seldom utilized regulatory and its decision-making authority to obtain indirectly what it was denied by the defeat of the EFCA.

First, the Democratic majority of the Board began issuing case decisions which liberalized union organizing rights and restricted traditional employer efforts to maintain order in the workplace. These decisions narrowed an employer’s right to make workplace rules and to impose discipline, expanded the concept of concerted activity, and broadly restricted the employer’s right to regulate new forms of communication, including social media, in and outside the workplace.

Second, as previously mentioned, the NLRB promulgated its NLRB Employee Rights Poster Rule.

Next came the Speedy Election Rule. The Speedy Election Rule makes six (6) principal changes to NLRB election procedure:

1. The amended regulations state that the sole purpose of the statutory NLRB pre-election representation hearing is a determination whether “a question concerning representation exists,” e.g., whether the proposed bargaining unit is an appropriate unit, whether there is sufficient showing of interest to obtain an election, whether there is a statutory bar to an election. The rule will preclude pre-election litigation on the eligibility of persons to be included in the bargaining unit and the status of persons who may be statutory supervisors.
2. To enforce the foregoing limitation, the revised regulations empower NLRB Hearing Officers to exclude evidence unrelated to the narrow questions of representation outlined above. This means, for example, employers will be unable to obtain a pre-election ruling on the supervisory status of their workers. This increases the risk that the employer or disputed supervisors may unwittingly commit unfair labor practices. Potential statutory supervisors, during the pre-election period, could be denied their full right to communicate with fellow workers, while exposing them to unfair labor practice charges.
3. The Speedy Election Rules permit Hearing Officers to reject the filing of post-hearing briefs unless they would assist the decision maker in resolving the limited issues in dispute
4. The Speedy Election Rules eliminate the current Board rule prohibiting election dates sooner than 25 days from the date of filing of the union election petition. There is no longer a minimum number of days from the filing of a union election petition to the date of an election.
5. The Speedy Election Rules require “special” permission from the local Regional Director to appeal any pre-election ruling to the NLRB. The Speedy Election Rules will effectively bar intermediate appeals to the NLRB. Presently, if there is such an intermediate appeal, the time from filing a union petition to the election is approximately 62 days. Under the Speedy Election Rules, elections could be held within 25 days or less. Time is invaluable to an employer opposing unionization.
6. Further limiting appellate rights, the NLRB empowered itself to reject pre- or post-election appeals. Unless the employer wins the election, its sole appellate remedy may be to engage in a technical refusal to bargain with the union and take an appeal to a United States Court of Appeals.

In sum, these changes, individually and collectively, will deny employers their full First Amendment Right to effectively communicate with their employees regarding their individual and collective rights to vote for or against the labor organizations or to engage in or to refuse to engage in collective activity. To minimize the impact of the Speedy Election Rules, it is strongly recommended that rather than wait for a decision in the pending Chamber of Commerce litigation, unrepresented employers or employers with units of non-union employees train their managers (and employees) regarding the NLRA, employer and employee rights, unions, collective bargaining, and unfair labor practices. Remember, one size does not fit all businesses. A wise employer should develop a crisis management plan in anticipation of the filing of a union election petition. Absent such a plan, if the Speedy Election Rules become effective, there may be insufficient time to communicate an effective employer response. This, in fact, is the goal of the Speedy Election Rules. Be prepared.