“Quickie” Union Elections Coming in April

The National Labor Relations Board’s (“NLRB”) new rule amending its long-standing union election procedures is set to go into effect in April, 2015. The NLRB contends that the new rule will “reduce unnecessary litigation and delay” in union elections. Opponents of the rule believe that it will be a boon to organized labor by speeding up the union election process so that employers will have less opportunity to communicate to employees about unionization and less ability to have a say on who gets to vote in a union election. Many observers have questioned the need to change election procedures given that unions already win about two out of every three elections.

Current Rule

Now a Petition for Representation filed by a Union is faxed to the employer on the day that it is filed. The NLRB then schedules a hearing date to determine voter eligibility and the time and place of an election for seven to ten days after the petition is filed. If the parties agree on voter eligibility and the time and place of an election, the Regional Director issues a decision and direction of election scheduling the election no more than 42 days from the petition filing date. The employer then has seven days from the direction of election to provide a list of eligible voters, including their names and addresses only. Under current procedures, whenever the union and the employer cannot agree on matters at the hearing, the employer has a right to litigate such issues, file a post-hearing brief, and ask the NLRB to resolve disagreements before an election is scheduled. The NLRB’s Regional Director then decides whether to direct an election, a decision the employer has 14 days to request review of by the Board. The NLRB also schedules the election for 25 to 30 days after the decision and direction of election by the Regional Director and the employer must provide a list of eligible voters seven days after the Regional Director’s decision.

New Rule

Pre-election hearings will be limited to determination of whether an election should be conducted. Those hearings must take place within seven days of the filing of a position statement. The new rule requires the employer to submit a “statement of position” on the union’s election petition, due no later than the date of the hearing, with any issues not included in the statement deemed waived. The new rule also gives the NLRB the ability to limit the presentation of evidence to what it believes to be relevant to the existence of a “question concerning representation.” The rule further grants the hearing officer discretion over the filing of post-hearing briefs, “including the subjects to be addressed and the time for filing.” Under this scheme, voter eligibility issues will be left to be decided post-election.

Additionally, the employer must provide a list of eligible voters, including the names, addresses, email addresses, telephone numbers, work locations, shifts, and classifications within two work days of the decision and direction of election. The rule eliminates the recommendation that the Regional Director should ordinarily not schedule an election sooner than 25 days after the direction of election.

The new rule also restricts the parties’ right to file a pre-election request for review of a Regional Director’s decision and direction of election, instead deferring all such requests until after the election. Board review of the Regional Director’s decision will now be discretionary and the circumstances under which a request for review will be granted are substantially narrowed. In other words, pre- and post-election rulings may go unchecked.

What It Means for You

Most importantly, the rule changes will dramatically shorten the time period from the filing of the Union’s petition to the election. This shortened time frame means that employers will have less time to educate and communicate with employees about the disadvantages of unionization and less time to train supervisors on how to respond lawfully to the union’s organizing campaign. Unions will now have more control over the timing of what will be ambush elections designed to limit an employer’s ability to respond and educate its employees. Additionally, employers will have limited opportunities to raise challenges to the fairness and legality of the election process. Skoler Abbott will host an important briefing on this topic in the future. In the interim, if you have any questions or concerns about this new law and its requirements, please contact any of the attorneys at Skoler, Abbott & Presser, P.C. at (413) 737-4753.

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