Joel Dillard, P.A.

Representing Mississippi Workers

Today new NLRB election rules go into effect

Today marks the beginning of an important experiment in labor law. Will the new rules result in fairer elections? I certainly hope so. The issue has been a preoccupation of mine for the better part of the last seven years - and has been the almost exclusive focus of my work at the NLRB for the last four years or so.

The basic question is the connection between the kind of process used to make a choice, and the essential quality of the choice made. For example, which is a more reliable way to make collective decisions: a public choice (show of hands) or a private one (secret ballot)? Does it matter where the choice is made? Signature on paper, voice vote in person, electronic check mark, handshake on a stage, etc. Elections used to be held publicly in the town square, and for a long time it was widely accepted that secret ballots were unreliable. When secret ballots - called Australian elections after the first country to adopt them - began to become more popular, John Stewart Mill, for example, opposed them vehemently as less reliable indicators of the true public preference. Union representation raises this issue, because it can happen either by contracts between the union and a majority of employees (as long as the employer agrees) or by a secret-ballot election held after getting contracts from at least 30% of the employees. (This was the subject of an academic paper I wrote with my wife, available by clicking here.)

The new rules, however, are much more limited in scope. In fact, they don't change any of the essentials of the election process itself. But they do make a number of changes around the margins that could have a significant impact on the fairness of the election.

If you judge by the reaction people had to the proposed rules then they could be a real revolution in NLRB elections. Tens of thousands - in fact closer to 100,000 - entities submitted comments during the rulemaking, including every major labor and employer group, and many not-so-major groups, as well as many individuals.

Of course, this could be overreaction. The changes really are rather minor.

For example, the old NLRB rule (from the 1960s) required employers to give the unions a list of employee names and available home addresses before the election. The purpose is to allow the union to contact the employees to make their campaign pitch.

The new rule requires the list to include additional contact information such as email addresses and phone numbers (which can only be used for communication about the election and related matters). This will allow faster and more meaningful contact with the employees.

The old NLRB rule required a notice of election to be posted at the time the election was scheduled, while the new rule requires an additional notice to be posted at the time the petition is filed. This gives employees weeks or even months of additional advanced notice.

Another example is in scheduling the election. The old rule made it very difficult for the NLRB to control the schedule, with parties' litigation demands and settlements largely determining when the election was held.

There were a number of issues, but the most significant was a fixed window period of 25-30 days from the regional director's decision to the election itself. This automatic stay didn't really serve any purpose.

There was also the challenged ballot issue, where the Board allowed the parties to introduce a bunch of evidence before the election about individual voter eligibility issues, even when the Board wasn't going to be deciding those issues until after the election - if necessary to decide the winner of the vote. This unnecessary litigation could be used to delay the election for strategic reasons having no relationship with election fairness.

The new rule fixes these two issues and a number of others which created similar problems. The upshot is that the NLRB will have greater control over the election date, and can better pursue the statute's purpose in holding elections that are as timely and fair as possible.

It will be interesting to see whether there is an uptick in petition filings in the coming days.

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