On February 6, 2014, a divided National Labor Relations Board (NLRB) reissued proposed amendments to its rules governing union elections. The proposed reforms are identical to the NLRB’s proposed June 2011 amendments. That proposal resulted in a final rule that was invalidated in 2012 because a district court found it was adopted illegally. See Chamber of Commerce v. NLRB, 879 F. Supp. 2d 18, 30 (D.D.C. 2012).

The proposed new rules would significantly shorten the time frame between filing an election petition and when employees vote. The rules would also postpone most legal challenges until after the election has taken place. These changes have long been sought by union advocates in order to counter the effectiveness of employer campaigns to persuade employees to reject unionization. If finalized, the new rules would mean major changes for the union organizing process.

Highlights of the proposed changes to the representation rules include:

  • Requiring employers to submit a written position statement within seven days after a petition has been filed that would disclose all of the employer’s legal issues and objections to the scope of the bargaining unit, the validity of the petition and almost every issue relating to the election. The failure to assert an issue within the seven-day period will result in waiver of every argument and defense not set forth in the position statement;
  • Requiring an employer to submit the names of employees in the proposed bargaining unit within seven days, before any issues regarding voter eligibility are addressed;
  • Limiting pre-election hearings to only very fundamental questions concerning NLRB jurisdiction and whether an election bar exists, and largely foreclosing consideration of who is eligible to vote and what is an appropriate bargaining unit;
  • Expanding the discretion of NLRB hearing officers to expedite and shorten pre-election hearings and to deny the parties the opportunity to submit written legal arguments on the issues;
  • Deferring most requests for NLRB review of election issues until after the election, when any such requests can be consolidated with any post- election challenges; and
  • Dramatically narrowing the circumstances under which a request for special permission to appeal to the NLRB will be granted.

The upshot of the proposed new rules will be to materially shorten the time that an employer has to respond to a union election campaign following the filing of a election petition. The rules would also impose significant new requirements on employers to submit their position on all legal issues related to a petition within seven days.

The deadline for public comments to the proposed changes is April, 7, 2014. A public hearing will be held by the NLRB during the week of April 7, 2014, at which members of the public may address the proposed amendments.