The NLRB has now issued its often-discussed proposal for a new rule to sharply curtail the time between the filing of a petition for union representation and a secret ballot election.
Although the explanation written by the union-leaning Democrat majority does not specify precisely how many days should be permitted between petition and balloting, the dissent by Republican Member Hayes predicts that the streamlined procedures will mean that "elections will be held in 10 to 21 days from the filing of the petition." Hayes adds, "Make no mistake," the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining."
The Board majority explains that it is obligated under Section 9 of the NLRA to hold a pre-election hearing to determine that a question of representation exists, which necessarily further requires a determination of the scope of the appropriate employee unit, but this does not require the Board to "decide all questions concerning the eligibility or inclusion of individual employees prior to an election."
Among the proposals within the 146-page notice that would enable shortening of the processing time between petition and balloting are:
- Electronic filing of petitions and service on the employer by petitioner;
- The possibility of immediate notification from the NLRB Regional Director of a pre-election hearing that may be set within as little as seven days after the petition is filed;
- An employer Statement of Position must be filed prior to or at the time of the pre-election hearing and must set out the employer's position on appropriateness of the unit requested by the union, descriptions of any proposed exclusions from the voting unit, a list of individuals in any "similar unit the employer concedes is appropriate," and the employer's views on any proposed exclusions from the voting unit and on the type of balloting to be conducted and the date, time, and place of voting;
- A rule that "if at any time during the hearing the hearing officer determines that the only issues remaining in dispute concern the eligibility or inclusion of individuals who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the hearing officer shall close the hearing"
Oral argument on the record at the conclusion of the hearing would be permitted but post hearing briefing would be rare. When a question of representation exists, the Regional Director would make an expeditious determination as to the appropriate unit and set the time and place of election. Contested voters would be deemed eligible to vote under a proviso that ballots would be impounded and the eligibility issues sorted out in a post-election hearing if the number of contested votes became outcome-determinative. The Excelsior list of names, addresses, phone numbers and email addresses of potentially eligible voters must be served by the employer within two days from the direction of election. The election shall not be scheduled for a date less that 10 days after the date on which the eligibility list of voters is filed and served, unless the petitioning union waives this requirement, in which case the election may be scheduled even more quickly. Any review by the Board of the Regional Director's Determination would be heard after the election, and, as a result, the current rule that balloting may not occur less than 25 days after the direction of election, is eliminated.
Under this approach, it appears that dissenting Member Hayes is correct in predicting that voting generally would occur within 10 to 21 days from the filing of the petition for representation.
The Board's Notice allows a mere 60 days for public comment and 15 additional days for replies to the comments. Member Hayes says, however, that what the Board is doing is likely permissible under the federal Administrative Procedure Act. Presumably the NLRB believes this is an "interpretive" rather than "substantive" rule under the APA definitions. It seems likely that the final rule will be promulgated by the end of this year or early next year.
As we've discussed in previous LeClairRyan newsletters and webinars, the way to maintain non-union status in light of this new process is to reinforce positive employee relations, communications, and union vulnerability assessment programs. Essentially, it's best to be in 24-7 management training, communications, vulnerability assessment, and campaign mode in order to prevent union authorization cards from being signed that might lead to these quick elections where management would have far less opportunity to make its positions known.