On April 30, 2012, the National Labor Relations Board's ("NLRB") new election rules took effect.  In the prior week, on April 26, Acting General Counsel Lafe Solomon issued a guidance memorandum to the Board's regional offices regarding details of the implementation of the new rules.*  http://www.nlrb.gov/news/acting-general-counsel-issues-guidance-regions-implementing-new-representation-case-proceduresThe Board has also offered some "frequently asked questions" elaborating on the rules changes.**  

A case challenging the new rules, filed by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, is pending in the U.S. District Court for the District of Columbia.  The judge in the case has stated the intention to rule on the parties' cross motions for summary judgment on May 15, 2012.  The plaintiffs have expressed the intention to file an immediate appeal and to seek a stay of the new rules in the D.C. Circuit Court of Appeals, if the district court's ruling is adverse.

The new procedures were devised in the aftermath of the defeat of the Employee Free Choice Act, and are intended to produce the same result intended by the proponents of EFCA-to make America more unionized.

The new rules will significantly reduce the time between the filing of an election petition by a union and the election itself.  But there are many more changes that will irrevocably provide an advantage to unions in elections and prevent employees from receiving factual information regarding unionization.  An employer's failure to abide by any of these new procedures will be grounds to invalidate a union loss in an election and will result in a new election.  Here are examples of some of the new procedures: 

  • Employers are required to post and electronically post the initial notice received with the petition from the NLRB continuously until election notices are posted.  Until now, this notice has been voluntary and did not have to be "e-posted."
  • Employers will now be required to provide to the union the names, work locations, shifts, and job classifications of all employees in the petitioned-for unit (voting group) within seven days of the petition.  Until now, the employer has not been required to provide even employee names to the union until the eligibility list was produced to the NLRB shortly before the election.
  • Employers must file a "Statement of Position" within seven days of the petition.  The Statement of Position must contain every argument the employer intends to raise in defense of the petition.  Failure to raise any issue in the Statement will result in a complete waiver of that argument.  The waiver may apply even if the employer does not discover the issue until later in the election process.
  • Employers will no longer be permitted to proceed to a pre-election hearing on most questions of voter eligibility.  Disputes about who is eligible to vote will not be resolved prior to the election.  In other words, the NLRB will now permit non-employees (supervisors, independent contractors, etc.) to vote in elections in most cases.  This, in combination with other procedural changes, could result in a unit that would normally be inappropriate. 
  • A notice of pre-election hearing will normally be issued on the same day the petition is filed, and the notice will set a hearing to be held within five working days of the issuance of the notice.  Among other requirements, a written request for a postponement of the hearing must provide "good and sufficient grounds" for the request, before a postponement will be given.  Requests for postponement of the hearing to a date more than 14 days after the petition was filed will normally not be granted absent extraordinary circumstances.
  • Written and oral legal argument may be presented at the pre-election hearing.  However, the hearing officer is given complete authority to determine the need for post-hearing briefs, the content of any post-hearing briefs and the time by which any such post-hearing briefs must be submitted.  Depending on how this discretion is exercised, employers may be denied the opportunity to submit post-hearing briefs and make legal arguments based on the record of the hearing.  According to the NLRB's FAQs, post-hearing briefs "will not be allowed in most cases."
  • Employers are prohibited from raising any issues or defenses if the Statement of Position is not timely filed.  In addition, an employer's failure to identify an alternative voting unit to the unit identified in the petition will be taken as an admission that the union's proposed unit is appropriate.
  • All pre-election appeals to the NLRB have been eliminated.
  • Up until now, there was a 25-day waiting period after a regional director reviewed and decided pre-election issues, and ordered an election.  This was to allow the Board sufficient time to consider any pre-election appeals.  Because the new rules eliminate pre-election appeals, the waiting period no longer serves any purpose, and the 25-day waiting period has been eliminated.
  • Voter eligibility (also known as "Excelsior") lists must be produced in an electronic format directly to the union within two days of an election agreement or direction of election.  The eligibility list must include employees' phone numbers, work locations, shifts, job classifications, and "available email addresses."  In the past, only an alphabetized list of eligible voters with home addresses was required.
  • The voter eligibility lists are to be provided at least ten days prior to the date of the election; however, if the union elects to waive the ten-day period, an election could be held within seven days. 

As indicated above, the design of the new regulations is to conduct most elections rapidly after a union's petition.  Employers will have very little opportunity to speak on the question of union representation.  This effective removal of Section 8(c) of the National Labor Relations Act (which preserves the employer's right to speak to its employees) will likely result in employees hearing only from union representatives-who are not required by the NLRA to be truthful during election campaigns.

Employers cannot wait for an election petition before advising their employees about the disadvantages of union representation.  This education should be presented now.  Once an election petition is filed, employers should immediately act, so as to avoid waiving their defenses early in the NLRB process. 

* See, http://www.nlrb.gov/news/acting-general-counsel-issues-guidance-regions-implementing-new-representation-case-procedures. 

** See, http://www.nlrb.gov/faq/election-procedures.