On June 22, 2011, the National Labor Relations Board (NLRB) proposed a set of pre- and post-election rules changes that would limit the ability of employers to challenge organization efforts by unions. The new rules would allow organizers to more quickly file election documents, eliminate pre-election Board reviews and generally shorten the amount of time it takes to conduct a union representation election. The Notice of Proposed Rulemaking may be found here: http://www.regulations.gov/#!documentDetail;D=NLRB-2011-0002-0001
The NLRB move may likely have a large impact on tribal businesses which are subject to the jurisdiction of the NLRB in certain cases. In 2007, the U.S. Court of Appeals for the District of Columbia in the San Manuel case ruled that the NLRB could hear an unfair labor practices challenge under the National Labor Relations Act against a tribal casino.
Since that time, unions have successfully organized workers in a number of tribal casinos, but many of those efforts have been under tribal, not federal, law. The new rules might provide labor unions with an easier path to collective bargaining representation under federal law.
Among the proposed changes are the following:
- Allow for electronic filing of election petitions and other documents. Currently, all communications must be in writing.
- Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in an election.
- Standardize timeframes for parties to resolve or litigate issues before and after elections.
- Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
- Defer litigation of most voter eligibility issues until after the election.
- Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available, rather than just home addresses.
- Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals. This will eliminate lengthy pre-election reviews.
- Make Board review of post-election decisions discretionary rather than mandatory.
Comments on the proposed rules are due by August 22, 2011, and may be submitted electronically at www.regulations.gov. The NLRB will conduct a public hearing in Washington, DC, on July 18-19, 2011, details to be provided later.
Please let us know if we may provide additional information regarding the proposed NLRB rules on the union election process.
