What Employers Should Know About NLRB's New "Quickie Election" Rules

On December 12, 2014, the National Relations Labor Board (NLRB) announced new rules for the handling of union organizing petitions that will become effective in April 2015. The NLRB's publication explaining the changes and its reasoning is more than 700 pages long. In a nutshell, the NLRB claims the changes will reduce unnecessary delay, remove unnecessary barriers to the fair and expeditious resolution of representation cases, and modernize filing requirements due to technology changes.

The reality, however, is that many of the changes will disadvantage employers who want to counter a union's organizing efforts. In fact, the two NLRB members who dissented from the decision to enact these rules have characterized them as "Election Now, Hearing Later" and "Vote Now, Understand Later."

Highlights of the Changes

As we informed you in our February update, "NLRB Re-Issues ‘Quickie Election' Rule Proposal," when these rules were proposed they will (1) expedite pre-election processes in union representation cases in a manner that will result in elections being held in a much shorter timeframe than they are now and (2) limit the post-election process in significant ways.

Currently, in cases when the parties stipulate to an election (by agreeing on critical issues like the scope of the appropriate employee voting group), the NLRB process from union petition to election typically takes 38 to 42 days. If the parties cannot stipulate to those critical issues and there is a need for a hearing, the process often takes 51 to 62 days, and occasionally longer. Several of the rule changes are procedural and will shorten current time periods between the filing of a petition and an election. As a result, in a number of ways they will have a significant practical impact on employers who face union organizing drives. For example:

• At the time a union files a petition, it must provide the NLRB with evidence that 30 percent or more of the employees support the petition ("showing of interest"). Currently, a union has 48 hours after filing the petition to submit the showing of interest (cutting two days).
• If the parties do not stipulate to an election, the NLRB will hold a hearing eight days after issuing notice of the hearing. Currently, hearings typically are scheduled within seven to 10 days, but some regions schedule hearings to begin within 10 to 12 days or even longer (a defined period cutting periods that may be twice as long).
• No written briefing will be allowed after a hearing (unless the Regional Director grants permission). Instead, hearings will end with oral argument. Currently, an employer is permitted to file a brief within seven days after the hearing (cutting seven days).
• The Regional Director will electronically send the Direction of Election and the Notice of Election simultaneously and specify the election details. Currently, the Notice is transmitted by mail after the Direction of Election and election details typically are addressed after issuance of a Direction of Election (likely cutting two to five days).
• Before the election, the employer does not have the right to request that the NLRB review the Regional Director's decision on issues raised at the pre-election hearing. Currently, employers have the right to request that the NLRB review the Regional Director's Decision and Direction of Election.
• Elections will no longer be stayed automatically in anticipation of requests that the NLRB review a Regional Director's Decision and Direction of Election. Currently, the rules generally require an election that follows a Decision and Direction of Election to be held between 25 and 30 days after the Direction of Election (cutting significant time between the Decision and Direction of Election and election date).
• Within two business days of the Direction of Election, employers must electronically transmit directly to the union and the Regional Director a list of employees with contact and other information — commonly known as the Excelsior list. Currently, employers have seven days to submit this list (cutting five days).

Other rule changes unfavorable to employers include the following:

• The employer must post and distribute to employees the NLRB's initial Notice about the petition and the potential for an election. Currently, an employer is not required to distribute the initial NLRB Notice.
• One day before a hearing, the employer must submit a written position statement that identifies issues it wishes to litigate before the election. The NLRB will not allow the employer to raise issues later if they are inconsistent with the pre-hearing statement. Currently, no such position statement is required.
• At the hearing, the employer also must provide a list of the employees' names, shifts, work locations and job classifications in the petitioned-for unit, and those of any other employees it wants to add to the unit. Currently, no such list is required.
• The Excelsior list of eligible voters will be required to include contact and other information the employer already has available, including their name, mailing address, personal email address, personal phone number, shift, job classification and work location. Currently, the Excelsior list need only include employees' full names and home addresses.

What New Rules Mean for Employers

These rules are a "double whammy" for employers — the NLRB has shortened the time employers have to inform employees about the issues raised by the union's organizing effort and has required employers to provide the union with information allowing it to more easily and quickly communicate with eligible voters. Additionally, many employers faced with a union petition will need time to retain counsel so they understand the legal constraints on any campaign activity and avoid violating the law or engaging in objectionable conduct. 

Tips for Employers

Employers have a little over three months to be intentional about having their house in order before these new rules become effective. The rules will shorten the time between a petition and an election considerably and, thus, an employer will have limited opportunity to prepare for and institute any counter efforts prior to an election. As they say, an ounce of prevention is worth a pound of cure. Here are some things that employers can consider implementing in 2015 and beyond:

• Educate your management team about the risks and downsides of unionization and creating an atmosphere that leaves employees without reason to consider unionization.
• Educate your hourly work force about the benefits of working for your organization, as well as other themes and issues that are likely to arise during a union organizing campaign.
• Assess your facility's vulnerability to a union organizing campaign by reviewing your existing policies, evaluating your current managers and supervisors, evaluating your communication methods, and assessing the manner in which you receive and process employee input.
• Consider forming and training a rapid response team that will be responsible for quickly assessing and responding to any union organizing efforts.
• Consider advance preparation of materials to be used during a union campaign. Many themes and education points are on issues for which an employer already can be prepared. That way, if the employer is hit with a petition, it will quickly have access to materials to review, revise as necessary, and use.
• Consider what information to maintain in employee files. Most employers have employees' home addresses and phone numbers, but they should be intentional about a decision to have or not have employees' email addresses in their personnel records.
• Assess whether restructuring of certain positions is appropriate — for example, by implementing cross-training and inter-departmental transfers and by evaluating the functions performed by team/group leaders — in light of a union's ability to define the group of employees it seeks to represent and an employer's limited ability to challenge that definition.