On December 12, 2014, by a 3-2 party-line decision, the National Labor Relations Board ("NLRB" or the "Board") issued a final rule, which if implemented will drastically truncate union election procedures. Such changes are intended to shorten the election period from the current median time of 38 days from petition to election to between 14 and 21 days (and perhaps as few as 10 days). This development is part of a flurry of year-end activity by the NLRB to implement more pro-employee, pro-union changes to established Board precedent and practices (see, e.g., " National Labor Relations Board Permits Employees to Use Workplace Email Systems for Union Activity").
The reorganization effort, which has become known as the "Quickie Election" rule, has evolved over the past several years and is marred by a contentious past. The Board initially approved a similar regulation in 2011; however, after a federal judge struck down the rule because it was not enacted by a required three-member quorum, the NLRB rescinded the rule. This time, the full Board, which by design has consisted of three Democrats (Chairman Mark Gaston Pearce, Nancy J. Schiffer,1 and Kent Y. Hirozawa) and two Republicans (Harry I. Johnson, III and Philip A. Miscimarra), promulgated the rule, but controversy remains.
Although the final 733-page rule, published in the Federal Register on December 15, 2014, will shorten the election period, it does much more to facilitate union victories, and it is likely that a number of elements contained in the rule will be contested by various business associations and/or companies. In particular, the following nine changes represent substantial deviations from the status quo:
First, the rule will alter the procedure regarding electronic communications with the NLRB. Currently, petitioners are required to submit election petitions by mail, fax or in-person. The new rule would permit electronic transmission of petitions, election notices, and voter lists. Moreover, the rule would permit the NLRB regional offices to communicate with parties by e-mail rather than mail in certain cases.
Second, the NLRB will provide parties with additional information about the election procedures and a "Statement of Position" form, which may be used to identify issues at the pre-election hearing. Similarly, the NLRB will provide voters with more details about the voting process in the "Notice of Election." Currently, the Board leaves this education element largely to the parties.
Third, the NLRB's expectation is that Regional Directors will set a pre-election hearing to begin eight days after a hearing notice and a post-election hearing 14 days after the filing of objections. The current policy leaves discretion to set the date for hearings to the Regional Directors. Although the timeframes are usually within these same general parameters, the flexibility permits the hearings to be set for dates that minimize the disruption for operations.
Fourth, a non-petitioning party will be required to submit a Statement of Position outlining all pre-election hearing issues at least one business day before the hearing opens or risk waiver. Currently, the non-petitioning party may explore any relevant issues at hearing without risk of waiver and does not need to disclose or identify those issues prior to hearing.
Fifth, a union will receive a list of prospective voters potentially much earlier than currently permitted and more information about those voters than was required previously. Specifically, in its Statement of Position, the employer will be expected to provide a list of possible voters, their job classifications, work shifts, and locations. Under the current rules, employers are not required to disclose information about their employees until after a decision or direction of election.
Sixth, the voter list that the employer must provide, commonly known as the Excelsior List, will have to include personal phone numbers and e-mail addresses instead of just names and home addresses. Moreover, the Excelsior List must be provided within two business days of the Regional Director's approval of an election agreement or direction of election, as opposed to the seven business days allowed now.
Seventh, the commonly permitted post-hearing, pre-election brief will be permitted only if the Regional Director determines it is necessary.
Eighth, there will no longer be an automatic stay of an election for the Board to consider a Request for Review of the Regional Director's decision.
Ninth, some voter eligibility and inclusion issues may be deferred to the post-election stage instead of the pre-election hearing regardless of the parties' desires.
In its announcement of this final rule, the NLRB stated that the rule is intended to "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." As expected, unions have welcomed the rule as what they deem to be desirable reform, while employers have criticized the NLRB's efforts as obvious support of unionization. At the crux of this debate is the common belief that unions have a better chance of winning an election when a campaign period is shorter. Unions contend that an extended campaign period provides employers with too great of an opportunity to "harass" employees and "coerce" them to vote against unionization, while employers assert that expedited elections hinder them with respect to educating their employees about what they see as the negative realities of unionization since a union typically has a head start in communicating with employees prior to an employer learning about the organizing effort.
The rule, which is set to take effect on April 14, 2015, will likely encourage unions to intensify their organization efforts. Given that, non-unionized employers may be well-served to take efforts to insulate their workforce in advance of the rule's effective date by educating managers and employees about unions and instituting effective policies.
Footnote
1 Member Schiffer's term on the Board expired on December 16, 2014, and Member Lauren McFerran was sworn in to fill her empty seat on December 17, 2014.
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