NLRB Issues Final Rule on "Quickie" Elections

December 14, 2014

By: Subhash Viswanathan

On December 15, the National Labor Relations Board's final rule amending the current procedures for handling union representation elections (which has become known as the "quickie" or "ambush" election rule) was published in the Federal Register.  The final rule will become effective on April 14, 2015. Although Board Chairperson Mark Pearce hailed the new representation election procedures as "a model of fairness and efficiency for all," the new procedures provide unions with a significant advantage in representation elections in a number of ways.  Among other things, the new rule shortens the time period between the filing of a petition and the scheduling of an election, requires employers to provide the union with a list of employees in the proposed bargaining unit earlier in the process, requires employers to provide to the union personal telephone numbers and e-mail addresses for employees in the proposed bargaining unit, and limits the issues that may be litigated by employers in a pre-election hearing.  The impending implementation of the final rule makes it even more important for employers to be able to recognize potential union activity as early as possible and to have a plan in place to respond quickly to a union representation petition once it is filed. This is the second time the Board has issued a final rule amending union representation election procedures.  The Board's first final rule was issued on December 22, 2011, but it was declared to be invalid by the U.S. District Court for the District of Columbia on May 14, 2012, because the Board lacked a quorum when it voted on the final rule.  The Board initially appealed the District Court's decision, but subsequently withdrew its appeal and re-issued its proposed rule in February of 2014. The final rule was approved by Board Chairperson Mark Pearce and Board Members Kent Hirozawa and Nancy Schiffer.  Board Members Philip Miscimarra and Harry Johnson dissented and voted against the issuance of the final rule.  The final rule:

• Permits electronic filing of representation election petitions and electronic transmission of election notices, voter lists, and other documents (which is intended to speed up processing);
• Requires that pre-election hearings be scheduled as early as eight days after the hearing notice is served on the parties (currently, pre-election hearings can begin up to two weeks after a petition is filed);
• Limits the issues that can be raised by an employer at a pre-election hearing only to those that are necessary to determine whether it is appropriate to conduct an election, and defers all other issues until the post-election stage (currently, employers can litigate any issues regarding voter eligibility and inclusion within the proposed bargaining unit at a pre-election hearing);
• Requires employers to provide to the Board and the union, at least one business day before the pre-election hearing, a "Statement of Position" identifying any issues they intend to raise regarding the petition and a list of employees in the proposed bargaining unit with their job classifications, shifts, and work locations (currently, employers are not required to provide a list of employees in the proposed bargaining unit until after an election is directed or an election agreement is approved);
• Eliminates the right to file post-hearing briefs after a pre-election hearing unless the Regional Director determines that they are necessary, and instead provides only for oral closing arguments at the conclusion of the hearing;
• Provides that an employer's request for Board review of a Regional Director's decision will not stay the election, unless the Board orders otherwise; and
• Requires employers to provide the Excelsior list of voter information to the union within two business days after an election is directed or an election agreement is approved, and requires employers to include employees' personal telephone numbers and e-mail addresses on the list if that information is available (currently, the time frame to provide the list is seven days after an election is directed or an election agreement is approved and the list need only include names and home addresses).

Currently, the general time period from the filing of the petition to the representation election is approximately five to six weeks.  The amendments contained in the final rule will likely shorten that time period to approximately two to three weeks, which will give employers much less time to communicate with employees regarding the drawbacks of unionization, to explain the realities and risks of the collective bargaining process, and to dispel the myth that unionization will automatically result in better wages and benefits.  Accordingly, it will be even more important for employers to train their supervisors to recognize and report some early warning signs of union activity and to develop a plan to respond quickly to a union representation petition once it is filed. Ray Pascucci, one of my colleagues in the Labor and Employment Department of Bond, Schoeneck & King, will be conducting a webinar on the Board's final rule on Wednesday, December 17, at 3:00 p.m.  Ray will review each element of the final rule and provide some practical recommendations to prepare for the possibility of a fast-track union organizing campaign.  More details will follow.