A Happy New Year Is in Store for Unions: Organizing Just Got Simpler
Labor & Employment Newsletter
Beginning April 14, 2015, a new National Labor Relations Board (“NLRB”) rule will take effect, implementing an accelerated election process, or “quickie elections,” and making it easier for unions to organize unrepresented employees. The NLRB published the “Final Rule” on December 15, 2014, which significantly reduces the period between the filing of a petition for union representation and a union election.
The Final Rule’s key changes to the election procedure include the following:
- Pre-Election Information. Under the Final Rule, employers and employees served with a petition for representation will receive detailed information on the NLRB’s case procedures. A Notice of Petition for Election, served alongside a Notice of Hearing, will provide information about each party’s rights and obligations during the election procedure. Parties will also receive a Notice of Election, through which they are required to provide prospective voters with detailed information about the voting process.
- Statement of Position. Non-petitioning parties will be required to identify their challenges to the petition in a Statement of Position, which they must submit one business day prior to the pre-election hearing. The petitioner will then respond to any issue raised by a non-petitioning party in its Statement of Position at the start of the hearing. In order to preserve an argument for subsequent litigation, a party must raise it in its Statement of Position or risk waiving it.
- Mandatory Initial Employee List and Disclosure of Employee Personal Information. As part of its Statement of Position, the employer will provide the NLRB regional office and the other parties with a list of prospective voters, including job classifications, shifts, and work locations. The current procedure imposes no requirement that the employer provide prospective voter information until after the regional director directs an election or approves an election agreement.
- Limitations on Pre-Election Hearing and Review of Post-Election Issues. The pre-election hearing will address only the issues identified in the Statements of Position. Parties will have an opportunity for oral argument during the pre-election hearing, and the regional director will allow post-hearing written briefs only when deemed necessary. This will eliminate the current provision allowing any party to file a brief within seven days after the pre-election hearing. Where under the current protocol the parties have to challenge the director’s pre-election decision prior to the election, the Final Rule will allow parties to wait until the election has occurred before filing a request for review of the pre-election decision. This change will allow parties to consider the election results before deciding whether to challenge the pre-election decision.
- Elimination of 25-Day Waiting Period. Under the Final Rule, the election will not be subject to an automatic stay. Existing protocol delays the election 25 to 30 days to allow the NLRB to consider any request for review of the regional director’s pre-election decision.
- Reduction of Post-Election Review. The NLRB will not be required to review aspects of post-election regional decisions that no party has contested and will have discretion to deny review of a decision. This replaces the current requirement that the NLRB review every element of a post-election dispute.
- Electronic Filing. Election petitions, notices, and voter lists will be filed electronically, as will various case documents transmitted by the NLRB regional offices. Under the current procedure, parties cannot electronically file petitions, and NLRB regional offices do not electronically transmit documents.
In practice, this means employers can expect union elections to occur much quicker, likely in the course of several weeks. The NLRB couches the Final Rule as a way to streamline its processes to benefit both employers and employees, but the quick turnaround time will greatly hinder the employer’s opportunity to campaign against a union prior to the election. To avoid unionization, employers will need to be proactive through ongoing employee-relations programs rather than reacting only when a petition has been filed. Such programming should include management training for positive communication with employees and the careful selection of supervisors with strong interpersonal skills. In anticipation of organizing attempts, employers may also want to conduct a preliminary analysis of unionization vulnerability to identify at-risk departments or locations that need proactive attention.