NLRB Issues Final Rule Expediting Union Elections

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The National Labor Relations Board has issued a Final Rule that substantially revises its representation case procedures.  The practical effect is that representation elections will be held in a shorter period of time, which reduces the ability of employers to educate their employees about the impact of unionization.  Traditionally, uncontested elections were held within 42 days following the filing of a union petition for election.  Although the NLRB has not yet issued any definitive statement as to the timing of elections under the new Final Rule, it is likely that this 42-day period will be cut almost in half.

This rule has a convoluted history.  The NLRB had previously issued a controversial and substantially similar quickie election rule in December 2011.  The rule was overturned by a federal court because the Board lacked a quorum at the time it issued the rule, and the Board issued a final rule rescinding the quickie election rule in January 2014.  The following month, however, the Board re-issued a proposed quickie election rule.  The new Final Rule will take effect on April 14, 2015.

The new Final Rule provides as follows:

  • Parties may now file or transmit documents electronically, rather than by using mail, hand-delivery, or fax.
  • When the union or a group of employees files a petition for a union election, they must serve on the employer a copy of the petition, along with the Board’s description of the new representation case procedures, and a Statement of Position form that identifies issues to be raised at the pre-election hearing.  The NLRB Regional Director will serve a Notice of Petition for Election and Notice of Hearing on all parties.  The employer must then file its own Statement of Position form, generally one business day before the hearing, identifying the issues it has with the Petition.  The petitioner will respond to the issues in the employer’s Statement of Position at the beginning of the hearing.  During the hearing, the parties will be limited to litigating only those issues that were raised in their Statements of Position or responses to the other’s Statement.
  • At the same time the employer files its Statement of Position form, the employer must also file a list of prospective voters, with their job classifications, shifts and work locations.  The list must contain available e-mail addresses and phone numbers on the prospective voter list, in addition to names and addresses.  Previously, the list of eligible voters did not have to be supplied until after the Regional Director approved an election agreement or directed an election following a hearing.
  • The employer must post a Notice of Petition for Election within two business days after being served by the Board.  This posting provides more detailed information about the election and voting process to prospective voters.
  • Pre-election hearings will generally be scheduled to begin 8 days after the Notice of Hearing is served on the parties.  The Regional Director may postpone the hearing for up to 2 business days with a showing of special circumstances, or more if there is a showing of extraordinary circumstances.
  • Generally, only those issues necessary to determine whether an election should be held will be heard in the pre-election hearing.  Disputes concerning voter eligibility or inclusion, according to the Final Rule, do not have to be decided before the election, and may be heard post-election.  This portion of the Final Rule will create uncertainty as to whether an employee is a “supervisor” or simply a leadperson.
  • All parties may make a closing argument at the hearing.  Written briefs, which were previously commonplace, will be permitted only if the NLRB Regional Director decides they are necessary.
  • The employer must submit a final voter list, including phone numbers and e-mail addresses, to the union within two business days of the Regional Director’s approval of an election agreement or decision directing an election.
  • Under the old rule, if a party seeks a Request for Review by the Board of a Regional Director’s decision, the election was delayed 25-30 days.  The new rule provides that the election will not be stayed after the Regional Director issues a decision and direction of election, unless the Board orders otherwise.
  • Post-election, each party may make a single post-election request for review of all pre-election rulings by the Regional Director.
  • Post-election hearings on objections to conduct affecting the results of the election generally will begin 21 days after the tally of ballots is issued.  Either party has up to 7 days after the tally to file objections.
  • Post-election exceptions and requests for review will now be filed directly with the Regional Director, not the Board.  The Board may deny review of post-election rulings by the Regional Director.

The NLRB has also issued a “NLRB Representation Case-Procedures Fact Sheet,” providing an overview of the changes and a comparison chart of the old and new rules.  We will be holding a webinar in January 2015 to further discuss this Final Rule and its impact on employers facing a union election, as well as recent significant decisions issued by the Board, including the Purple Communications case expanding employee access to the employer’s email system to engage in union organizing activities.  Details about the webinar will be forthcoming.