New Rules Make Union Organizing Faster and Easier

By a 3 to 2 vote, the National Labor Relations Board (“Board” or “NLRB”) has now issued its final rules dramatically changing union representation election procedures and shortening applicable time frames for a vote. Proposed new rules were first announced on December 21, 2011, and were to go into effect on April 30, 2012. Those amendments were blocked in federal court based on procedural grounds and were never enacted. Absent court action, these final “quickie election” rules will take effect on April 14, 2015. These new rules may well prompt increased union organizing activity, and employers should prepare now to address that risk.

The new rules will modify NLRB election procedures in a number of important ways:

  1. Pre-election hearings (to be held 8 days after the filing of the election petition) will be held only to decide whether there is adequate support for a secret ballot election, or whether there is any legal impediment to the vote; disputes about voter eligibility and unit scope will be determined by the Board after the election, instead of before it, if at all.
  2. Position statements must be submitted prior to the pre-election hearing, and any arguments not raised are waived.
  3. NLRB hearing officers will have authority to significantly limit pre-election hearing evidence, and to close the hearing and order an election, even if the eligibility of many voters in the bargaining unit are still in doubt (an earlier version of the rules, allowing a vote only if less than 20% of the unit was in doubt, was eliminated).
  4. Post-hearing briefs will be permitted at the hearing officer’s discretion, rather than as a matter of right.
  5. Parties may seek NLRB review of a Regional Director’s pre-election rulings, but only after the election.
  6. Regional Directors will no longer be prohibited from scheduling the election less than 25 days after directing an election; no time period is prescribed at all, other than that the election should be held “at the earliest date practicable.”

The overall effect of these changes will be much quicker elections, which will reduce the amount of time the employer has to communicate its position to employees before they vote. Therefore, many employees may be compelled to vote without all the necessary facts unless employers become more proactive. Under the current rules, many contested representation issues, including unit scope, supervisory status, and other voter eligibility questions are resolved in hearings and appeals before the election takes place. Currently, many elections with contested issues are held six weeks or more after the election petition is filed.

Under the new rules, questions concerning whether the union has the required showing of interest — normally based on authorization cards — to force an election will still be heard before the election. Most other issues will be deferred until after the election, thereby shortening the process considerably. Even then, the amended rules will permit the full NLRB to refuse to hear those issues. Thus, under the amendments it will be possible for Regional Directors to conduct an election as soon astwo weeks after the petition is filed, and the employer will have no recourse.

These rule changes, combined with prior Board rulings allowing smaller or micro-bargaining units (see our August 2014 update), are likely to increase organizing activity. Much less time and effort will be required to organize a micro-unit and bring the matter to a vote quickly. Since an employer often learns of an organizing effort only when the petition is filed, the time between the filing and the election can be the crucial period during which the employer may lawfully communicate facts about representation and the collective bargaining process to employees. Since employers will have far less time to communicate with their employees when these new rules take effect, they should consider educating employees now about the facts of union representation and the collective bargaining process. As always, employers should also listen to employee concerns and address them, where possible, in advance of any organizing activity. Finally, supervisors should be trained to recognize organizing efforts and should fully understand the “do’s and don’ts” applicable to their conduct.