On December 15, the National Labor Relations Board (NLRB) published final rules intended to shorten drastically the time in which unions can obtain elections to become the representatives of employees in the workplace. They are scheduled to take effect on April 14, 2015. Virtually identical to previous rules invalidated by a federal court, the final rules are controversial because of their content and the way they were issued. The divisive rules are certain to elicit legal challenges from employers.
In a press release, the Board heralded the rule changes as an effort to “modernize and streamline the process for resolving representation disputes.” The emphasis is on significantly reducing the time between the filing of an election petition and the date of the election. Below is a summary highlighting some of the new rules.
- Pre-election hearings eight days after notice and post-election hearings 14 days after filing of objections. Currently, Regional Directors have discretion regarding the scheduling of pre- and post-election hearings.
- Employers must provide voter lists prior to pre-election hearing. The current rule requires employers to provide voter lists only after an election was approved.
- Employers must provide the union with name, home address, home phone number, and personal email of workers within two business days of the scheduling of an election. The current rules require employers to provide only the name and home address of workers voting in the election. Employers had seven calendar days to provide the information.
- Employers must raise issues with election petition at least one day prior to pre-election hearing. Any issues not raised in a prehearing statement of position are waived. The current rules provide no mechanism for raising challenges to an election in advance of a hearing.
- Parties cannot litigate voter eligibility or voter inclusion prior to an election. The only issue the parties can litigate at the pre-election hearing is “whether it is appropriate to conduct an election.” Under the current rules, the parties can litigate voter eligibility and inclusion prior to the election.
- Pre-election written briefs only are allowed if the Regional Director deems them necessary. If the Regional Director does not require written briefs, the parties will only have the opportunity to present oral argument at the pre-election hearing.
- No automatic stay of elections. The current rules generally provide for a 25-30 calendar day automatic stay so the Board could review a Regional Director’s decision regarding the appropriate unit to utilize for an election. Under the new rule, the Board will no longer review the decision in advance of the election.
- The Board is not required to review post-election disputes. The new rules also emphasize the Board’s discretion when deciding whether to review any post-election rulings of the Regional Directors. Under the current rule, the Board is required to review all post-election rulings.
Although employers cannot know the real effect of the rules until after they are implemented on April 14, 2015, it is clear the Board wants quicker elections with less Board oversight.
Employer groups are certain to challenge both the content and method of implementation of the rules. It is not clear how that ultimately will play out in the courts. One thing, however, is certain. Under the new rules, an employer will have substantially less time to communicate with its employees about the meaning and effect of being represented by a union. Consequently, union-free employers must be even more vigilant than ever about spotting signs of employee dissatisfaction and resolving workplace issues. They must also be prepared to quickly implement strategies to combat union organizational efforts.