eLABORate: NLRB's New Election Rule

December 15, 2014

On December 12, 2014 the National Labor Relations Board issued a final rule, 29 CFR §§ 101, 102, 103, which expedites the union election process and makes it more difficult for employers to defend against an election. The new rule shortens the time between the petition and the election, limits pre-election litigation, and provides employees with broader access to resources to organize themselves, at the employer’s expense. The new rule is set to go into effect on April 14, 2015. The following are the most notable changes:

  1. Expediting Elections: Before this rule, a petition for an election would be filed with the Regional Director of the appropriate NLRB office, it would be investigated to ensure it was legitimate (e.g., the union had enough interest, the NLRB has jurisdiction, etc.), and then the NLRB would either schedule an election by agreement of the union and the employer, or, if there was a dispute, schedule and hold a hearing and then order or authorize an election. Typically, union elections would take place around 30 days after the NLRB ordered or authorized an election (unless there was an appeal). Under the new rule, some business groups expect elections may take place between 10 and 21 days following the petition, especially given other changes in the process.
  2. Expediting Pre-Election Hearings: With an expedited election comes an expedited hearing process. The new rule provides for a maximum of eight days for the employer to prepare a position statement and get ready for a pre-election hearing. The NLRB will hold a pre-election hearing eight days after notice of the hearing is served. The employer is required to submit a position statement, identifying issues to be raised at the pre-election hearing, one day before the hearing. This leaves employers with just seven days to research, collect information, organize exhibits, and actually write a position statement.
  3. Minimizing Pre-Election Litigation: The new rule largely eliminates the right to appeal pre-election determinations and allows the hearing officer to minimize the evidence collected. The NLRB will now defer any issues that are not absolutely necessary for determining whether or not an election should be held. Those issues will now be litigated in a post-election hearing if they affect a small percentage of the voting unit. Issues such as whether employees are eligible to be part of a bargaining unit or not, because they are supervisors, will now largely be excluded from the pre-election hearing process.
  4. Providing a Detailed Employee List to Petitioners: Under the current process, the petitioning party is only entitled to a list of employees and their home addresses; the employer must submit it within seven days of the approval of an election. Under the new rule, employers are required to provide the petitioning party with that same list but the time requirement is minimized and the information included is expanded: the employer must submit the list within two days of election approval and the list must also include phone numbers and e-mail addresses of employees.

The new rule significantly shortens the time that employers will have to respond to election petitions, while also expanding the access unions have in their organizing efforts. Given that employers may learn of the organizing effort for the first time when they see the petition, their ability to respond and challenge a union’s election effort will be hindered by the shortened time period.