Employers: Think Fast

The NLRB’s ‘Quickie’ Election Rule Is Coming This April

By AMELIA J. HOLSTROM, Esq.

Any employer that has been through a union-representation election knows the importance of time. The longer the time frame between the filing of the union’s petition and the election, the more time the employer has to educate and communicate with employees about the merits of remaining union-free.

This time period also gives the employer time to train its supervisors how to respond lawfully to the union’s organizing campaign. But beginning in April, that time frame will be drastically reduced. The National Labor Relations Board’s (NLRB) election rules are changing. The NLRB’s new election rule, frequently referred to as the ‘quickie’ election rule, will dramatically shorten the time period between the filing of a petition and the election.

The new rule means significant changes for employers. Under the current rule, the time between the filing of the petition and the election is generally 38 to 42 days, although it may be slightly longer. The new rule, however, will reduce that time period to around 19 or 20 days. Most importantly, this shortened time frame means that unions will now have more control over the timing of what will be ambush elections, purposefully 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.

Under the current election rules, a petition filed by a union and hearing notice is faxed to the employer on the day that the petition was filed. The hearing date to determine voter eligibility and the time and place of an election is scheduled within seven to 10 days after the petition is filed. If the parties agree on matters at the hearing, the regional director issues a decision and direction of election, scheduling the election no more than 42 days from the date the petition was filed. 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 seven days after the hearing, and ask the regional director to resolve disagreements before an election is scheduled. The NLRB’s regional director then issues a decision, and the employer has 14 days to request board review of the regional director’s decision.

The NLRB also schedules the election for 25 to 30 days after the decision by the regional director, and the employer must provide a list of eligible voters, including names and addresses only, seven days after the regional director’s decision. Requests for review may result in a stay of the election or a delay in opening the ballot box on election day.

Beginning in April, however, the election rules are changing.

Under the ‘quickie’ election rule, pre-election hearings will be limited to a determination of whether an election should be conducted. Those hearings must begin eight days after the NLRB issues a notice of hearing. The new rule now requires the employer to submit a “statement of position,” generally no later than one business day before the hearing. This statement must include the identification of any issues the employer has with the petition plus a list of prospective voters with their job classifications, shifts, and work locations.

Any issues not included in the statement are deemed waived. The new rule also gives the NLRB the ability to limit the presentation of evidence at the hearing to evidence it believes is relevant to the existence of a “question concerning representation.” The rule also grants the hearing officer discretion over the filing of post-hearing briefs.

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

In addition to these timing challenges, the new election rule also restricts the parties’ right to file a pre-election request for review of a regional director’s decision and instead puts all such requests off until after the election. Board review of the regional director’s decision will be discretionary, and the circumstances under which a request for review will be granted are substantially narrowed. In other words, employers may be denied the opportunity to challenge pre- and post-election rulings.

Each year Bloomberg BNA releases mid-year NLRB election statistics. According to the statistics for 2013 and 2014, unions have been winning representation elections between 65% and 70% of the time. However, under the ‘quickie’ election rule, we expect that unions may be able to win more frequently in the future.

Employers need to understand the increased risk and be ready to act quickly when they learn that a petition has been filed. Employers concerned that they are at risk of a union-organizing drive should reach out to experienced labor counsel for assistance before it’s too late.

Amelia J. Holstrom joined Skoler, Abbott & Presser in 2012 after serving as a judicial law clerk to the judges of the Connecticut Superior Court, where she assisted with complex matters at all stages of litigation. She is a graduate of Western New England University School of Law, where she was the managing editor of the Western New England Law Review. Her practice is focused in labor law and employment litigation; (413) 737-4753; [email protected]