NLRB Amends Union Representation and Election Procedures to Hasten Election Process | Practical Law

NLRB Amends Union Representation and Election Procedures to Hasten Election Process | Practical Law

The National Labor Relations Board (NLRB) has issued a rule amending procedures for union representation and elections. The new rule, labeled by some as the "quickie election" rule, will expedite the initial representation election process, but has been met with significant dissent.

NLRB Amends Union Representation and Election Procedures to Hasten Election Process

Practical Law Legal Update 3-592-3585 (Approx. 4 pages)

NLRB Amends Union Representation and Election Procedures to Hasten Election Process

by Practical Law Labor & Employment
Published on 16 Dec 2014 • USA (National/Federal)
The National Labor Relations Board (NLRB) has issued a rule amending procedures for union representation and elections. The new rule, labeled by some as the "quickie election" rule, will expedite the initial representation election process, but has been met with significant dissent.
On December 12, 2014, the panel (Board) heading the NLRB's election functions announced the adoption of a final rule applying changes to the procedures for union representation cases. The new rule, labeled by some as the "quickie election" rule, will expedite the initial representation election process, but has been met with significant dissent. (79 Fed. Reg. 74308 (Dec. 15, 2014).)
The rule, which takes effect on April 14, 2015, was approved by Chairman Pearce and Members Hirozawa and Schiffer. Members Miscimarra and Johnson dissented.
The new rule extensively changes the NLRB's procedures, for example specifying that:
  • Union elections will generally be held within 10 to 21 days after the petition is filed, rather than the previous rule's 42 days.
  • Any pre-election hearings will occur eight days after the petition is filed. Prior to that date, employers are required to file a position statement addressing threshold issues such as:
    • unit appropriateness;
    • exclusions from the bargaining unit; and
    • the proposed date, time and location of the election.
  • Post-election hearings will generally be scheduled 14 days after the filing of objections.
  • Employers that seek a pre-election hearing must provide the union with two lists identifying employees:
    • in the challenged petitioned-for unit; and
    • in what the employer argues is the appropriate unit.
  • Within two days after the unit is decided, the employer must provide an electronic list of employees including names, addresses, phone numbers, work locations and classifications. Employees' personal phone numbers and email addresses must be provided if available to employer.
  • Once a union is certified, employees may not seek to decertify the election until the later of:
    • one year; or
    • the expiration of the first collective bargaining agreement.
  • At the pre-election hearing, parties will generally litigate issues necessary to determine the appropriateness of conducting an election. Litigation of some eligibility and inclusion issues that an NLRB regional director decides need not be decided before the election may be deferred to the post-election stage.
In dissent, Members Miscimarra and Johnson noted that:
  • The final rule adopts most of a 2011 Board proposal that was invalidated by the District of Columbia's district court (Chamber of Commerce of the United States v. NLRB, 879 F. Supp. 2d 18, 21, 25, 30 (D.D.C. 2012)).
  • The rule adopts an "election now, hearing later" approach that was rejected by Congress twice.
  • The time needed for employees to understand the relevant issues is improperly shortened ("vote now, understand later").
  • The rule impermissibly limits the right of employers, unions and employees to engage in protected speech.
  • The rule does not make clear whether or why any agency rulemaking was required on these procedures.
  • All representation election deadlines are accelerated by this rule, potentially resulting in a denial of due process for parties.
  • The rule diminishes the importance of the Board's role in resolution of post-election questions.
  • The rule's expanded disclosure requirements do not comport with other Board decisions.
  • The rule fails to apply reforms that might have had unanimous support from all Board members.

Practical Implications

The new rule adopted by the Board will make it difficult for employers to challenge unionization or generate dialogue with the employees, prompting some to refer to these elections as "ambush elections." With the adoption of the new rule, employees will often be required to vote without a full understanding of the relevant issues or even whether the vesting unit will be deemed an appropriate bargaining unit if the union is elected.