Differing Views on the Shortened Time Frame and Other New Procedures Reflect the Sharply Divided NLRB

HIGHLIGHTS:

  • Effective April 14, 2015, the long-standing election procedures to resolve questions concerning union representation will be truncated to facilitate what a number of commentators critical of the changes refer to as "ambush elections." The proponents of the changes characterize them as overdue modernization to streamline election procedures. It is expected that a challenge to the NLRB's new rules is likely.
  • The decision of employees to organize and fundamentally change their relationship with their employer is one that has consequences that generally last for many years. Those in disagreement express concern that the shrinking of the election process by approximately one month may not support the overarching objective of the NLRA, which is to promote stable labor relations.

Effective April 14, 2015, the long-standing election procedures to resolve questions concerning union representation will be truncated to facilitate what a number of commentators critical of the changes refer to as "ambush elections." In contrast, the proponents of the changes characterize them as overdue modernization to streamline election procedures. In any event, the new rules were barely approved by a sharply divided National Labor Relations Board (NLRB or Board), with the three union-oriented members forming the majority and the two management-oriented members issuing a sharp dissent in opposition. It is expected that a challenge to the new rules is likely.

The Controversial Changes

1. Voter Information

Employers will generally be required to provide the union with a list of eligible voters about one week after an election petition is filed and before there has been a hearing on any issues. Presently, employers need only share a complete list of the names of eligible voters after representation issues have been resolved by agreement approved by the regional director or after a decision resolving election issues and the accompanying direction of election has been issued following a hearing. At such time, presently this list must include the addresses of the eligible voters, and it must be provided within seven days of approval of an election agreement or the issuance of a direction of election. Under the new rules, the list will be required to:

  • include email addresses and telephone numbers
  • be provided within two business days of the approval of an election agreement or the direction of election, as applicable

2. Election Timetable

Procedural changes, including limiting time limits, compress the pre-election representation process and prevent full exploration of relevant issues at hearing in favor of expedited elections. The new rules attempt to draw a distinction between issues concerning the appropriate unit and employee eligibility or inclusion in appropriate units. In many cases, this is a distinction without a difference, but the new rules will preclude the latter and, ostensibly, permit the former, although it is not entirely clear exactly how that will work. Rulings by the hearing officer will not be appealable during the hearing unless the regional director has granted "special permission." Parties will no longer have the right to brief issues after the hearing has concluded, except at the discretion of the regional director. Thus, hearings that will now begin within eight days of the filing of a petition will be followed immediately by the regional director's direction of an election at "the earliest date practicable." Presumably, this means at least three days following the regional director's decision, since the Board's requirement of posting the election notice at the site of the election for at least three full days prior to the election remains. Appeals from the regional director's decision and direction of election will no longer automatically stay the election while the Board reviews the issues raised.

Practical Consequences

Union organizing activity will ramp up much earlier, before the unit is finally defined, with the early exchange of employee information before any hearing takes place. Later, once a decision and direction of election issues, these organizing efforts will be enhanced by the exchange of additional personal employee information, namely email addresses and telephone numbers. This is particularly so when considered in conjunction with the NLRB's nearly simultaneous decision in Purple Communications to allow employees to use their email at work for organizing activity. (See Holland & Knight alert, "NLRB Expands Employees' Right to Use Employers' Email for Union Organizing," Dec. 16, 2014)

In most cases, under the original rules, elections were conducted within 40-55 days of the filing of an election petition, during which time unit and eligibility issues were usually finally resolved. However, under the new rules, elections could now be held as early as 12 days after a petition has been filed – without any final resolution of basic representation issues concerning the unit or voter eligibility. Opponents believe that employers and their employees lose the opportunity (which is protected by law) to exercise fully their free speech in thoroughly examining the issues concerning union representation, the legal and practical consequences, and to have that examination enhanced by exposure to the competing views of the employer and the union that are communicated during the pre-election period.

Critics find the compression of the election timetable to be an injustice to one of the most significant labor relations issues in the lives of working men and women and their employers. The decision of employees to organize and fundamentally change their relationship with their employer is one that has consequences that generally last for many years. Opponents question the adoption of procedures that minimize the time and free exchange now available to consider the issues before making a decision with such an impact, thereby diminishing the significance of the decision – whatever it might be – and detracting from the overarching objective of the National Labor Relations Act, which is to promote stable labor relations. The courts will likely have the final word on whether the new rules will take effect as presently planned on April 14, 2015.