After announcing its intentions in 2011, by a 3-2 vote the NLRB published its final rules to overhaul the way it will handle petitions filed by unions to represent employees.  The NLRB is advertising the new process as a means for “modernizing” and “streamlining” how petitions and representation disputes will be handled.  The employer community views the changes as a blatant attempt to assist unions in their efforts to organize employees. 

The “quickie election rules,” as they are commonly referred to, will shorten the period from when an election petition is filed with the NLRB to when the actual election is to be held from the typical 6 weeks to as few as 2 weeks, provide unions with more access to employees during the campaign period, and limit an employer’s ability to object to an petition.  The new rules will go into effect on April 14, 2015.

The NLRB has published a rather detailed fact-sheet summarizing the new rules and how they differ from the status quo of the past few decades.  Among the highlights of the changes are:

Changes to the Petition Processing Rules

  • Unions will be able to file their petitions by email, and no longer just by fax or regular mail;
  • Excelsior lists (that is, the lists of employees who are eligible to vote) will have to be provided by employers to the unions within two days, instead of seven days, after an election agreement is finalized or an election is otherwise directed;
  • Excelsior lists will have to include employee phone numbers and, if available, personal email addresses, and no longer just home addresses, and thereby may require employers to scour the new I-9 forms or other records to compile employee email addresses; and
  • The new Excelsior lists will make it much easier for unions to communicate with employees during the shortened campaign period.

Changes to the Election Hearing Rules

  • If the employer intends to litigate the petition, the hearing will held within eight days of the petition’s filing, which is much quicker than under current practices.  The employer also must file a pre-hearing position statement by the day before the hearing starts, raising all of the key issues it believes will have to be addressed at the hearing;
  • Any issues not listed by the employer will be deemed waived, and the union need not respond to the employer’s position until the start of the hearing;
  • Along with the pre-hearing position statement, the employer also will have to provide a list of all prospective voters by job classification, shift, and work locations, a requirement not currently in place;
  • Unlike the current practice under which post-hearing briefs are allowed within 7-14 days post-hearing, pre-election hearings normally will conclude with oral arguments;
  • An appeal of a Regional Director’s ruling in a pre-election matter to the NLRB no longer will delay automatically the holding of the election; and
  • Disputes regarding who should be included in the unit and eligibility of voters no longer will be heard as part of the pre-election hearing process, but instead will be deferred until after an election is held.  The pre-election hearing issues therefore are limited to whether an election should be conducted.

Consequences for Employers

Employers who desire to limit their workforces from unionizing, or who at least wish to educate their employees as to what unionizing may mean to them, must realize that these new rules change the paradigm in which they can accomplish these objectives.  These rules, which will likely result in elections occurring more quickly and more often, will undermine the techniques many employers have been using to date.  The effects of these new rules are compounded by the NLRB’s new rules allowing for “micro-units,” that is units where the concept of what constitutes an “appropriate bargaining unit” has been seriously loosened allowing unions an easier entry into a workforce than under prior precedent.  Employers therefore should meet with counsel to review their options for responding to these new rules. 

For instance, at the very least, union avoidance training should occur with managers and employees before union authorization cards begin to circulate in the workplace.  Attorneys and consultants may be used to identify issues causing the employer vulnerability and how to address those issues without running afoul of the legal parameters.  Supervisors should be identified and response teams should be trained in advance as to how to communicate with employees about unionizing both prior to and after the filing of a petition.

Employers should not wait until a petition is filed to retain counsel to address election issues. There will be little time to do so. Rather, counsel should be consulted now to help plan for that event if it’s to occur, and to hopefully help preempt it from occurring. 

It also is possible that there will be various legal challenges to the new rules.  Such challenges prevailed a few years ago, but only because the courts held that the NLRB lacked a legal quorum to pass the rules.  Other legal theories exist, but they may be more challenging.  In addition, leaders of the new Republican Congress have expressed some interest in passing legislation to vacate the new rules.  It is too soon to tell how likely this will occur or whether it would survive a veto if passed. 

In any event, employers should not wait with the hope that some intervening event will stop these new rules from becoming effective.  When April arrives, some employers will quickly find themselves to be subject to the new rules, and only those who prepare will have a chance to respond.  Further, by responding now, employers may have communication plans in place that could serve to help avoid a union drive from ever getting momentum.