After an unsuccessful effort to implement new election rules in 2011, the NLRB has now re-issued election rules that would substantially speed up the existing union election process.
The National Labor Relations Board (NLRB or the Board) announced on December 12 that it has adopted new election rules (the Final Rule) that will substantially change—and speed up—the existing union election process. A Board majority adopted the Final Rule, with Chairman Mark Pearce, Member Kent Hirozawa, and Member Nancy Schiffer supporting the Final Rule, and with Members Philip Miscimarra and Harry Johnson dissenting. In what can be described as an avalanche of regulatory change, the Board’s published Final Rule encompasses hundreds of pages of text and includes sweeping changes to long-established NLRB procedures for conducting representation elections.
The Final Rule will be printed in the December 15, 2014 edition of theFederal Register, and the corresponding changes are scheduled to take effect on April 14, 2015.
Key Changes in the Final Rule
The Final Rule adopts changes based on those that the Board advanced in February 2014 through its Notice of Proposed Rulemaking (NPRM), with some minor modifications. Notably, the 2014 NPRM almost entirely adopted the Board’s June 2011 NPRM that sought a similar overhaul to the existing representation procedures. A two-member majority of the Board, in December 2011, adopted part of the 2011 NPRM, but those amendments never went into effect based on a federal court decision finding that the amendments were adopted without a valid Board quorum. Morgan Lewis represented the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace in this litigation.
Among the changes imposed by the Final Rule are the following:
- All pre-election hearings must be set to begin eight days after a hearing notice issues.
- Employers must file a “Statement of Position” by noon on the day before the hearing begins. The Statement of Position must include a list of prospective voters and their names, job classifications, shifts, and work locations. Failure to include arguments or defenses in the filing may result in waiving that position going forward.
- Pre-election hearings will be drastically limited in scope, with regional directors and hearing officers having authority to exclude evidence or prevent pre-election litigation over voter eligibility and inclusion issues and to make such determinations based on statements of position and offers of proof.
- Post-hearing briefs are limited to when the regional director determines that they are necessary.
- The right to obtain Board review of post-election regional director decisions is eliminated and replaced with a discretionary review process.
- An employer must make available for campaign purposes, within two business days of the election agreement or decision directing an election, employee personal telephone numbers and email addresses.
- Electronic filing of election petitions and the related showing of interest to support the petitions is now permitted.
The collective effect of the Final Rule will be to significantly expedite the election process, despite the fact that more than 95% of all NLRB elections already take place within eight weeks of a petition being filed. An important and intended effect of these rules is to limit the time for employers to attempt to persuade employees to vote against union representation.
Dissent from the Final Rule
NLRB Members Philip Miscimarra and Harry Johnson remarked that “[t]he Final Rule has become the Mount Everest of regulations: massive in scale and unforgiving in its effect. Very few people will have the endurance to read the Final Rule in its entirety.” From this perspective, the dissenting members extensively address the perceived flaws of the Final Rule, including its “election now, hearing later” approach that promotes speed in the process over other legislative goals and statutory requirements. In turn, the dissent emphasizes its concerns over reduced free speech and due process rights under the Final Rule. Finally, the dissent laments that the Board majority has disregarded the possibility of “consensus” reforms to the NLRB election procedures and instead has pursued a partisan path to achieve so-called “modernization” of the election procedures.
The Final Rule represents the culmination of more than three years of effort by the NLRB’s majority members to achieve radical changes to the NLRB election procedures through regulation. There are significant legal questions as to the Board’s authority to implement these changes and whether they are consistent with congressional intent. Unless enjoined by a federal court or postponed by the Board, the Final Rule goes into effect on April 14, 2015.