The NLRB Finalizes Its Controversial “Quickie Election” Rules

The National Labor Relations Board (the “Board”) recently voted, 3-2, to finalize its 2011 proposed regulations (the so-called “quickie election rules”), which are expected to dramatically change the union representation election process under the National Labor Relations Act.  The final rules, published in the Federal Register on December 15, 2014, remain as controversial today as when first proposed in 2011, as they are expected to significantly curtail the right of employers to communicate with their employees on the issue of union representation before an election and limit employers’ ability to participate in the representation process before the Board.

In 2011, after limited public hearings, the Board adopted a portion of the quickie election rules; however, a federal district court invalidated that action because the Board had acted without a valid quorum.  Earlier this year, the Board decided to re-issue the proposed rules and held several days of public hearings in April 2014.  Absent a court-issued injunction staying their implementation, the new election rules will go into effect on April 14, 2015.

Key changes under the new rules that will expedite union elections include the following:

• the pre-election hearing will be held just seven days after a petition for election has been filed (currently this happens a few weeks later in a typical case);

• employers will be required to promptly disclose to the union a preliminary voter list that includes the proposed bargaining unit members’ names, work locations, shifts, and job classifications;

• employers will be required within two days of an election being scheduled to provide a final voter list (the Excelsior list), which includes the employees’ home and cellular telephone numbers and personal email addresses, if available;

• resolution of many eligibility disputes currently decided before the election will now be delayed until the post-election period;

• post-hearing briefs will be allowed only if the regional director determines they are necessary; and

• Board review of contested issues (such as the appropriateness of bargaining units, voter eligibility, and election misconduct) will be made discretionary, rather than a matter of right.

The final rules also will provide employers with limited time to raise any possible objections.  Within seven days of service of a union’s petition for election, an employer will be required to complete a detailed Statement of Position setting forth its position on each of the following matters:

• the appropriateness of the petitioned-for unit;

• any proposed exclusions from the petitioned-for unit;

• the existence of any bar to the election;

• the type, dates, times, and location of the election; and

• any other issues that a party intends to raise at hearing.

Because the final rules prohibit an employer from offering evidence or cross-examining witnesses as to any issue not raised in its Statement of Position (or in response to the Statement of Position of another party), in effect, an employer must raise all issues and state the basis for raising them within a maximum of seven days or forfeit all legal right to pursue those issues later in the proceeding.

Currently, most elections take place within about six weeks of the petition date.  The final rules will shorten this time frame to about three weeks and, in some cases, to as few as 13 days.  Given the limited time in which employers will have to respond to organizing efforts once a petition for election is filed, employers wishing to remain union-free will need to recognize potential union activity as early as possible and have a plan in place to respond quickly.  Employers also would do well to remain pro-active in addressing what are often the root causes of unionization in the first place.  Most notably, unhappy employees who feel that managers are unwilling to listen to their concerns are far more likely to turn to unionization as the perceived panacea for their discontent.  Maintaining open channels of communication that allow employees to voice their concerns to their supervisors and upper management can often be an effective antidote to union organization.