On December 12, 2014, the National Labor Relations Board (“NLRB” or the “Board”) issued a final rule that substantially revised its existing procedures for conducting union elections. The new rule significantly accelerates the existing union election process. The new rule took effect on April 14, 2015.

The key procedural changes under the new rule include:

Mandatory pre-election notice posting

  • Within two business days an employer will be required to post a Notice of Petition for Election to advise employees of the petition, their rights under the Act, election procedures, etc.
  • The employer must also distribute the notice electronically if it customarily communicates with employees via email.
  • There is no such posting requirement under the current rules.

Required statement of position

  • Prior to any pre-election hearing, an employer will be required to submit a statement of position to the NLRB and the union within seven days after receipt of the petition.
  • The position statement must set forth why the petitioned-for unit is inappropriate and how the unit should be changed to create an appropriate unit. The submission must also include the employer's position on issues of voter eligibility and election details (date, time, place, etc.).
  • Failure to raise issues in the position statement will preclude the employer from raising such issues at the pre-election hearing. The union must respond to the employer’s position statement at the hearing.
  • There is no such posting requirement under the current rules.

Employer is required to provide an initial employee list to the union

  • If a pre-election hearing will be conducted, the employer must provide to the union within seven days after receipt of the petition the full names, work location(s), shift(s), and job classification(s) of all employees in the petitioned-for unit and all employees that the employer may seek to add (or exclude) from the unit.
  • There is no such requirement under the current rules. This new requirement is in addition to the existing requirement to provide an Excelsior list after the direction of an election.

Accelerated timeline for pre-election hearing

  • Any pre-election hearing must be held within eight days from the NLRB’s service of the Notice of Hearing on the employer. The hearing date can be postponed up to four days, at the Regional Director’s discretion.
  • Under the current rules, pre-election hearings are initially scheduled seven days from the service of the Notice of Hearing but are often postponed an additional seven days or more, at the Regional Director’s discretion.

Pre-election hearing issues are limited

  • Issues to be resolved at the hearing are limited to whether the petitioned-for unit is inappropriate. All issues related to individual voter eligibility, including questions of supervisor status will be deferred to the post-election challenge process.
  • Post-hearing briefs will typically not be permitted following the conclusion of the hearing.
  • The current rules permit the resolution of all eligibility and similar issues at the pre- election hearing. Post-hearing briefs are also commonplace.

Campaign period between hearing and election is virtually eliminated

  • The NLRB will no longer provide a 25-day “grace period” between the close of the hearing and the election date. Elections will now be scheduled at the “earliest date practicable” as permitted under the new rule.
  • Elections will not be stayed pending the resolution of a request for review to the Board based on the Regional Director’s findings at the pre-election hearing
  • Under the current rules, a 25-day grace period is provided. Ballots are currently impounded and held unopened while a request for review is pending.

Expedited Excelsior list

  • The employer will be required to provide an Excelsior list within two days following the Regional Director’s decision and direction of election.
  • The information that must be included on the Excelsior list has been expanded to include personal cell and home telephone numbers and personal email addresses (if available) of all employees eligible to vote.
  • Under the current rules, the Excelsior list must be filed within seven days after the direction of election and the list must only include names and home addresses.

 Expedited election objection procedures

  • Any party that files election objections must do so within seven daysafter the tally of ballots and must include evidence in support of the objections at that time.
  • Any hearing on election objections will be conducted within 21 days of the tally of ballots.
  • Under the current rules, the objecting party has an additional seven days to investigate and file evidence in support of the election objections. Hearings on objections are typically conducted several months after the election.

Expedited timeline

  • Based on the procedural changes summarized above, the election timeline is extremely truncated. The shortest possible timeline between petition and election is 13 days.
  • A sample timeline is as follows:

Day 0 – Petition filed and served along with Notice of Hearing
Day 7 – Statement of Position due
Day 8 – Hearing held (eight days from service of Notice of Hearing)
Day 9 – Decision and direction of election issued and Notices of Election served (which must be posted for at least two days prior to the election) 
Day 11 – Excelsior list due
Day 12 – Notice of Election posting period ends (commenced on Day 10)
Day 13 – Election held (if union waives the 10 days for having the Excelsior list) 
Day 22 – Election held (if union does not waive the 10 days for the Excelsior list)
 

  • Timing will vary depending on the circumstances of the particular petition. However, elections will likely occur in 22 days or less from the date the petition is filed.

Conclusion

The most significant practical consequences of the new procedures are twofold: 1) the campaign period is greatly reduced leaving an employer little time to counter union messaging and 2) the time to develop legal positions and prepare for pre- and post- election hearings is virtually eliminated. Employers must remain proactive on both fronts to have any chance of success in defeating a union organizing effort.