A divided National Labor Relations Board (3-2) has issued its long-awaited final rule governing the conduct of representation elections, reducing the time between the filing of a representation petition and the election through procedural changes. 

The 700-page rule will take effect April 14, 2015. The Board also provides a chart highlighting the changes (http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-representation-case-procedures-fact-sheet). According to the Board, the purpose of the new rule is to “simplify representation-case procedures, codify best practices, and make them more transparent and uniform across regions.” While the validity of the new rule is expected to be challenged, union organizing efforts, which have languished for years, will get a boost meanwhile.

The rule was first issued in 2011 but later was invalidated by a federal court because the Board lacked a quorum when it was enacted. Chamber of Commerce of the U.S. v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012). The Board issued a more extensive proposal in early 2014, which became final today.

Highlights of the rule include:

  • An employer must submit a “Statement of Position” within seven days of receipt of the election petition. Failure to raise a particular issue in this filing would preclude it from presenting evidence or cross-examining a witness on the issue at the representation hearing. 
  • Any pre-election hearing must be scheduled to open eight days following the region’s notice of petition.
  • The right to file a post-hearing brief following the pre-election hearing has been eliminated.
  • Regional Directors normally must schedule the election through a direction of election rather than permitting the parties to agree on a date.
  • The automatic 25-day stay of election following the Regional Director’s decision and direction of election is eliminated.
  • Employers must produce the list of voters (“Excelsior List”) within two days, instead of seven, following the direction of election. The List must contain not only the names and addresses of voter, but also their personal telephone numbers and e-mail addresses, if available.

While the changes clearly will shorten the time between the filing of a petition and the election, the rule does not establish a particular time period in which the election must occur, instead directing Regional Directors to schedule the election “at the earliest date practicable.”

Criticisms likely will focus on three key issues. First, the new rule will result in highly expedited representation elections that will frustrate the purpose of the National Labor Relations Act’s central tenet — employee free choice. It severely limits the time for employer dialogue with voters, interfering with voters’ right to be fully informed on the important question of union representation. Second, a non-petitioning party (usually the employer) must submit a position statement of all pre-election issues shortly after the petition is filed or risk waiving its arguments. This will cause significantly more work for employers with significant time constraints and may result in a denial of due process. Finally, as the Board’s dissenting members observed, the requirement that employees’ telephone numbers and e-mail addresses be provided is “irreconcilable” with Purple Communications, 361 NLRB No. 126 (2014), where the Board held “social media, texting, and personal e-mail accounts” are not germane because they “do not serve to facilitate communication among members of a particular workforce.” The dissent also criticizes the absence of any employee opt-out rights or other privacy protections regarding disclosure of this personal information.