The NLRB (controlled by pro-union appointees) recently proposed new election rules that would make significant changes to the Board’s longstanding election procedures.  The proposed changes include:

  • Pre-election hearings would be held (absent “special circumstances”) seven days after the NLRB Regional Director served a “notice of hearing” on the employer.  As a practical matter, a hearing will be set about a week after the union filed the petition for an election.
  • No later than the date of the pre-election hearing (and perhaps earlier), the employer would be required to submit a written “statement of position” identifying all legal issues it intends to raise at the hearing.
  • The “statement of position” would be required to include the “full names, work locations, shifts, and job classifications of all individuals” in the bargaining unit proposed by the union and, if the employer contested the appropriateness of the union’s unit, the “full names, work locations, shifts, and job classifications of all employees in the most similar unit that the employer conceded was appropriate.”  This information generally would need to be provided in an electronic format.
  • The employer would be required to provide the Regional Director with the home addresses, available phone numbers, and available e-mail addresses of all employees identified in the statement of position.
  • The employer would risk waiving legal objections if it failed to prepare a timely “statement of position” containing all of the required information.
  • The Regional Director would not consider any disputes affecting less than 20% of the bargaining unit before the election was held.
  • Within two days after the Regional Director directed an election, the employer would be required to provide the Regional Director and the union with a list of the full names, addresses, available telephone numbers, available e-mail addresses, work locations, shifts and job classifications of all eligible voters.  This list usually would need to be provided electronically.  Under current law, unions only receive employees’ names and addresses and employers have seven days to provide them after the direction of the election which can be several weeks after the union files the petition.

If adopted, these changes would have very significant implications for employers who wish to remain union free.  Union elections would be conducted very quickly, perhaps as little as ten days after a petition was filed instead of the usual 30 to 40 days.  Unions would have a huge advantage in these “quickie” elections.  Unions decide when to file a petition for an election and will only do so when they are well ahead.  It takes time for employers to educate employees about the full implications of union representation and there are many legal issues involved in an election campaign.  The new rules are designed to limit employers’ time to consult counsel and to respond to misleading union claims that can cause employees to vote for union representation without fully understanding the facts.

The new rules could become effective as early as mid-September unless Congress acts to stop them.  Under current political circumstances, congressional action to stop the new rules appears unlikely.

If the new rules become effective, it will be imperative for employers to detect union organizing campaigns at the earliest possible moment (before a petition is filed) and to respond immediately.  Better still, employers should assess their vulnerability to union organizing and take appropriate measures before organizing begins.  Employers should involve counsel as soon as possible to try to minimize the disadvantages caused by the new rules’ extremely tight deadlines.