By: Dan Cohen – 12/15/14
On December 12, 2014, the National Labor Relations Board issued its final rule on “quickie” elections. The final rule is to be published today in the Federal Register and is to take effect on April 14, 2015. According to the NLRB website, the final rule:
is designed to remove unnecessary barriers to the fair and expeditious resolution of representation questions. The Final Rule will streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.”
The final rule should not come as a surprise with Democratic Board Member Nancy Schiffer’s term set to expire on December 16. Both Republican Board Members dissented, calling the final rule unnecessary, a violation of employee privacy and an obstacle to employees making informed choices regarding unionization
The final rule significantly reduces the amount of time in which the parties can campaign in support of their respective positions and the number of issues that can be litigated before the NLRB. Of course, these limitations clearly favor unions since employers can win most elections by simply communicating the truth about unions and what it would mean to employees be represented by a union. However, it does take time to adequately communicate that message to the workforce. And, the more employees involved, the more time it typically will take. With less time, unions can conduct their campaigns and make all of their promises and misrepresentations to the workers before filing their petitions, and employers will have little time to respond.
Up until the “quickie election rules, employers have had between 37 and 75 days to debunk union myths and provide a dose of reality to the employees depending on whether the employer chose to contest the proposed bargaining unit or other issues. The new rules limit how much an employer can do and changes the time line significantly as follows:
- Employers will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens (i.e. 7 days after receipt of the petition). Litigation inconsistent with the positions taken by the parties will generally not be allowed.
- Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties.
- Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held.
- Post hearing briefs will be allowed only if the regional director determines they are necessary.
- The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.
Unions will also benefit from the new requirement that employers respond to the petition by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition, which must include a list of prospective voters, their job classifications, shifts and work locations, and their available personal email addresses and phone numbers.
The “quickie” election rules are closer to reality than ever before. They are scheduled to go live in the Spring of 2015 and it is hard to imagine anything the Republican controlled Congress can/will do to derail them. Employers better start getting their messaging strategies together and otherwise getting their ducks in a row right now. If there is a petition filed under the new rules, there will be little time to react.
You may read more by linking to the NLRB Case Procedure Fact Sheet and the NLRB’s Comparison of the Old and New Election Rules.