On December 12, 2014, the National Labor Relations Board (“NLRB” or the “Board”) issued its long-awaited final rule amending its representation case procedures to shorten the time frame for holding union-representation elections and to require employers to provide more information about employees to unions. The final rule is the culmination of a process that began in 2011 when the Board first proposed wide-sweeping changes to the procedure for conducting union elections. The 2011 proposal resulted in an abbreviated final rule that was derailed by litigation over procedural defects in the rule’s adoption. The effort to revise the representation case procedures was resurrected after new members were confirmed to the Board, and the final rule now adopted more closely resembles the Board’s broad 2011 original proposal than it does the abbreviated rule that was unsuccessfully adopted three years ago. This final rule comes after two rounds of public comments and hearings and is best characterized as the work of the current pro-labor majority of the Board. The complete comments to the final rule, which include a dissent of over 100 pages by the two Republican members of the Board, are over 700 pages in length.
The Board majority characterizes the new rule as “modernizing and streamlining” the representation case process. The dissent and critics from the business community claim that the rule is intended to greatly reduce the time period from the filing of a petition for election until the election itself, which is seen as giving unions a distinct advantage in elections. Other changes in the rule require the employer to provide more information to employees and the union, which is also seen as helping unions win more elections.
The key elements of the final rule are as follows:
- Unions may file election petitions electronically and must simultaneously serve a copy of the petition on the employer. Unlike the old rule, which required unions to produce a “showing of interest,” usually in the form of signed union authorization cards, within two days of filing the petition, the new rule requires that the showing of interest be filed along with the petition.
- The new rule generally requires that the NLRB’s regional director schedule a hearing on the petition for a date eight days after notice is given. Given the electronic filing option, hearings could be held as soon as eight days from the actual filing of the petition.
- The Board will provide employers with a new detailed election notice that must be posted and distributed electronically to employees immediately upon receipt. Under the old rules, the Board would provide an initial notice to employers, but posting was not mandatory.
- Employers will be required to file with the Board a statement of position by noon on the day before the hearing, setting forth the employer’s position on any issues related to the petition itself, the voting unit, and any other legal concern. In other words, employers must be prepared to file a complete statement of their legal position in response to a petition in as few as seven days from receiving notice of the petition.
- Along with the statement of position, employers will now be required to provide the NLRB and the union with an alphabetized list, in electronic format if possible, of employees in the proposed voting unit, showing each employee’s job classification, shift, and work location. This is intended to allow the Board to resolve any unit issues more efficiently, but obviously also provides the union with a tremendous advantage in developing intelligence about the unit for its campaign.
- In one of the most controversial aspects of the new rule, most issues related to unit composition will not be litigated at the hearing, but instead will be deferred until after the election. Only when the issues raised could have a “substantial impact” on the election results will the issue be litigated at the hearing. The Board majority claims this change will avoid unnecessary delay over issues that normally do not affect the outcome of an election. The dissent points out that initial unit composition issues are critical to controlling parties’ conduct during a campaign, such as whether to treat an employee as a supervisor or voting unit member. The dissent also argues the new rule will lead to more protracted litigation after elections.
- Under the new rule, any issues that are litigated at the pre-election hearing must, in most cases, be addressed through closing arguments at the conclusion of the hearing, rather than through written post-hearing briefs. While the majority views this as being efficient, the result will be to shorten the election process by at least one week.
- Under the current rule, there is an automatic stay of 25 – 30 days after the regional director directs an election to allow parties to file requests for review with the NLRB in Washington. There is no mandatory time frame in the new rules for the scheduling of the election after the regional director’s decision, but the rules direct that the election is to be scheduled as soon as possible. The dissent argues this could be as few as seven days from the direction of the election.
- Under the old rules, employers had seven days from the date of a direction of election or an election agreement to file the Excelsior list, a list of names and home addresses of employees in the voting unit. Under the new rules, this list must also include telephone numbers and email addresses, must be served on the union as well as the Board, and must be filed within two days of the direction of election or election agreement. In addition to taking five more days out of the previous typical election time frame, this rule will provide the union with much more information to facilitate its communication with employees.
The various changes to election procedures contained in the new rule appear to allow for elections within 21 days of a petition being filed and may even allow for an election within 14 days. This is a tremendous change from the current procedures by which, on average, elections are held within 38 days of a petition being filed. While the new rule does not set a specific schedule for the holding of elections, a clear purpose behind the rules is to shorten election campaign periods significantly. As the dissent argues at great length, this reduced campaign period will greatly impact employers’ opportunities to communicate with their employees about unionization, which will likely lead to significantly more union victories.
The new rule is scheduled to take effect on April 14, 2015. There will likely be legal challenges filed in an effort to stop the new rule, but it is uncertain whether any such challenge will succeed. Employers need to assume the new rule will take effect and make plans to deal with this new reality of union election procedures. In-house counsel and human resources professionals should ensure that top-level management is aware of the new rule and the effect it will have on the timing of a union election once a representation petition has been filed. Because they will likely have less time to communicate their message regarding unionization after a petition is filed under the new rule, employers should rethink their communication strategy up front. It may be wise to include information on unionization in orientation presentations to new hires and in periodic communications with existing employees and to develop in advance a post-petition communication plan that takes into account the shortened time frame leading up to a union election. Employers should also assess in advance their legal positions regarding potential bargaining units and should train supervisors and managers about what to expect and do if a union organizing campaign occurs. The attorneys on Kilpatrick Townsend’s Labor & Employment Team are ready to assist employers in meeting the challenges posed by the NLRB’s new rule.