UPDATE: FEBRUARY 2014
On Feb. 5, 2014, the National Labor Relations Board (NLRB) re-issued a proposed rule that would make it much easier for unions to form in U.S. workplaces. The proposal would shorten the time between the filing of union election petitions and actual voting, making it much easier for unions to win elections and more difficult for employers to communicate with employees before the vote.
Business groups oppose these “quickie” or “ambush” election rules. The NLRB argues that they're needed for "modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay."
The NLRB proposed such an idea a few years ago. In fact, a scaled-back version of the rules actually took effect for a few months in 2012 before a court said the rules were invalid (see below).
At the time, dissenting NLRB member Brian Hayes warned that the rules would mean workplace union elections would be held in 10 to 21 days from the filing of the petition. He said "the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining."
According to Ogletree Deakins, the proposed changes to this version of the rule are:
- The proposed rule eliminates current procedures providing for pre-election appeals to the Board from the actions of the Regional Director on the election petition and providing instead only for a single, discretionary appeal of pre-election and post-election issues after the votes are cast. An appeal to the Board prior to the election is expressly limited to issues that would otherwise escape Board review entirely if not raised at that time.
- The proposed rule eliminates current requirements that a vote cannot be held sooner than 25 days after the Board's Regional Director issues a Direction of Election. As a practical matter, this means that elections will be held sooner after the Direction of Election than was previously the case, although the precise length of time may vary in each case.
- The proposed rule clarifies that a pre-election hearing is to determine only whether a question concerning representation exists and that the hearing officer has authority to limit the evidence taken at the hearing that does not have relevance to a genuine issue of fact material to that issue. This means that many issues of individual voter eligibility as opposed to voting unit composition may be deferred to the post-election procedures rather than litigated prior to the vote. The right of parties to file a post-hearing brief to the Regional Director, previously guaranteed under the Board's rules, is now made discretionary with the hearing officer.
- The proposed rule requires that a hearing be held within seven days of the filing of a union's representation petition.
- The proposed rule allows the union's petition to be filed electronically, changing the current practice that requires filing by hand or regular mail.
Note: The NLRB is inviting comments from the public. The deadline for comments is April 7, 2014. Comments may be submitted electronically at regulations.gov or via mail.
UPDATE: May 15, 2012:
Court stops 'quickie election' rules for union representation
New rules that sped up the union election process, which took effect April 30, are invalid according to a ruling by a federal court in Washington. The previous election procedures, in place for years, continue to apply because the National Labor Relations Board (NLRB) lacked a quorum when only two members cast votes for the new “quickie election” rules in December 2011.
The NLRB was down to three members in December. Only two voted to implement the new rules. (Read details on what they involved below.) A third abstained; NLRB Member Brian Hayes had previously voted against the rules but sat out the December vote.
The U.S. Chamber of Commerce sued, arguing against the merits of the new rules, but also challenging the validity of the NLRB’s own voting procedures. That was all the U.S. District Court for the District of Columbia needed to hear.
It ruled that the NLRB vote was invalid—and so were the new union election rules—because only two of the board’s sitting members cast ballots. The court cited a 2010 Supreme Court decision, which ruled that a two-member NLRB lacked the authority to decide cases.
The NLRB currently has a full roster of five members. That means it could schedule another vote some time in the future to implement the new election rules. It could also appeal the federal court's decision. However, in the meantime, the old rules apply.
UPDATE: May 1, 2012:
New NLRB 'quickie election' rules now in effect
New National Labor Relations Board rules that will dramatically shorten the union election process in U.S. workplaces went into effect on April 30. Simultaneously, the NLRB issued a memo detailing how its regional offices will referee disputed union elections under the new rules, plus a set of frequently asked questions (FAQs) on teh impact of the new election rules.
The “quickie election rules” shorten the time between the filing of an election petition and actual voting, making it easier for unions to win elections and more difficult for employers to communicate with employees before the vote.
Read details and find links to more information below.
UPDATE: DEC. 22, 2011:
New NLRB rules will speed up union elections
On Dec. 21, the National Labor Relations Board (NLRB) voted 2-1 to approve procedural changes that could dramatically shorten the union election process in U.S. workplaces. Among other things, these “quickie election” rules require employers to postpone legal challenges until after the workers vote. The rules are scheduled to take effect on April 30, but a business-backed lawsuit is challenging the changes.
Faster union elections on the way following NLRB action
by Bernard Jeweler and Harold P. Coxson Jr., Esqs., Ogletree Deakins, Washington, D.C.
The National Labor Relations Board (NLRB) has approved a final rule that will speed up union elections workplaces nationwide.
The new rule shortens the time between the filing of an election petition and actual voting, making it easier for unions to win elections and more difficult for employers to communicate with employees before the vote.
The final rule changes the current representation election procedures by:
What’s not included
- Eliminating current procedures providing for pre-election appeals to the NLRB based on the election petition. Instead, it only allows a single, discretionary appeal of pre-election and post-election issues after the votes are cast. Appeals before an election are expressly limited to issues that would otherwise escape NLRB review entirely if not raised at that time.
- Eliminating the current requirement that votes can’t be cast until 25 days after an NLRB regional director issues a “Direction of Election.” As a practical matter, that means union elections will be held sooner than before, although the precise length of time may vary in each case.
- Clarifying that a pre-election hearing can only be held to determine if a question concerning representation exists. Hearing officers now have authority to limit evidence unrelated to representation. This means that many issues of individual voter eligibility (as opposed to voting unit composition) may be deferred to the post-election procedures instead of being litigated before voting. The right of parties to file a post-hearing brief to the regional director, previously guaranteed under NLRB rules, is now at the discretion of the hearing officer.
The business community vigorously and successfully protested some of the proposed rule’s most onerous and unfair provisions. The result is that the following provisions have been tabled for now:
What does this mean?
- Requiring hearings to be held within seven days of the filing of a union’s representation petition.
- Allowing unions to file petitions electronically, rather by hand or regular mail.
- Requiring employers to prepare and file a comprehensive “Statement of Position” on an election petition no later than the date of the hearing (and forever waiving any issues omitted from the statement).
- Forcing employers to give unions employees’ email addresses and telephone numbers before the election, not just names and mailing addresses.
- Shortening from seven days to two working days the time frame for providing a voter eligibility list to the union following issuance of a Direction of Election.
Even though the NLRB's new rule is less onerous to employers than its original rule (which would have reduced the time between filing an election petition and the casting of votes to as few as 10-21 days), it still substantially shortens the period from filing of the petition to the date of election from the current board target of 42 days. That’s because of the provision that eliminates pre-election appeals of regional director rulings.
Regardless, elections will be held quicker than before, the precise period being determined by the circumstances in each case.
The board has avoided some of the most scathing criticism leveled by the business community at the original rule by not adopting for the moment:
However, this respite may be only temporary. There is no guarantee that the NLRB will not adopt these portions of its proposed rule in the months to come, depending on the number and political composition of board members at that time.
- The absolute requirement to hold pre-election hearings within seven days of the petition.
- The requirement for employers to file a Statement of Position on or before the hearing date in which they must raise all issues, or waive them entirely.
The board will “defer the remainder of the proposed rule for further consideration.”
This is, in effect, a strategic retreat from worst provisions of the original proposal, but is by no means a final surrender. In fact, whenever the NLRB restores its quorum in 2012, the majority likely will reinstitute its earlier provisions.
In the meantime, business groups will continue to attempt to block enactment of the rule.
Among their strategies is supporting passage of the Workforce Democracy and Fairness Act (H.R. 3094). Essentially, if passed, the legislation would make it harder for unions to organize many small bargaining units. No longer could a handful of employees band together in a union. Instead, union organizers would have to include more employees, making it harder to win a majority and establish a union presence.
Bernard Jeweler and Harold P. Coxson Jr. are shareholders in Ogletree Deakins’ Washington, D.C., office. Contact them at (202) 887-0855.
UPDATE: DEC. 5, 2011:
The National Labor Relations Board (NLRB) voted Nov. 30 to move one step closer toward changes that would speed up the union election process in U.S. workplaces and limit employer participation in the process.
These so-called “quickie” election rule changes (see story below) would represent “the most sweeping reforms to representation election procedures since the inception of the National Labor Relations Act,” says law firm Fisher & Phillips.
As of early December 2011, the NLRB was rushing to finalize these rule changes by Dec. 31. Reason: The currently three-member board will lose its quorum status with the expiration of the term of Craig Becker, a pro-union board member, on Jan. 1.
According to Fisher & Phillips, the NLRB resolution approved Nov. 30 provides for the following changes, all of which would serve to substantially expedite the election process:
- Give new-found latitude to hearing officers to confine pre-election representation hearings to matters that are "relevant to a genuine issue of material fact as to whether a question of representation exists;"
- Deprive parties of the right to file post-hearing briefs, absent express permission from that hearing officer;
- Eliminate the right to seek review of any rulings pertaining to the appropriate bargaining unit and related items until after the election has taken place, and the ballots counted;
- Rescind current regulations imposing a delay of 25-30 days between the date an election is directed and the election itself;
- Deny the right to request special permission to appeal directly to the Board absent "extraordinary circumstances;" and,
- Amend current rules to give the Board discretion to deny final review of post-election disputes.
According to Fisher & Phillips, the Board did clarify that the upcoming rules will not include the initially proposed amendments regarding electronic petition filing; pre-election hearing timetables; mandatory Statements of Position; voter eligibility list timetables; and submission of employee e-mail addresses and phone numbers.
If these rules become final, the median time period between petition and election (which presently stands at 38 days) will be reduced by at least 50%, thereby shrinking opportunities for employee education to marginal levels.
JUNE 2011 -- In a move that delighted labor unions and angered business groups, the National Labor Relations Board (NLRB) on June 21 proposed new rules that would expedite the process by which employees vote on whether or not to form a union.
The NLRB says the new rules—published in the Federal Register on June 22 as a Notice of Proposed Rulemaking—are intended to, “reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.” Interested parties can submit comments until Aug. 22.
The agency didn’t say it is mandating any specific timetable for the speeded-up election process. But Brian Hayes—the NLRB’s only Republican member and a dissenter in the NLRB’s 3-1 vote on the proposal—predicted the changes will force elections “in 10 to 21 days” after the filing of a petition to form a union. In 2008, the average time it took from petition to election was 57 days.
Business groups criticized the proposal as a gift to organized labor, saying the changes would give employers less time and opportunity to block a union’s advances.
Randel Johnson, senior VP of labor issues for the U.S. Chamber of Commerce, said, the proposal, “is another not-so-cleverly-disguised effort to restrict the ability of employers to express their views during an election campaign, to inform employees of the pros and cons of unionization.”
Johnson argued the Obama administration is using the regulatory process, “to tilt the playing field in organized labor’s favor during union campaigns. (The rule) is a blatant attempt to give unions the upper hand by limiting the ability of employers to exercise their free speech rights. Unions already win more than 60% of all elections held by the Board, undermining any argument that current rules are unfair.”
As part of the proposed rule changes, the board will attempt to avoid union election delays by putting off (until after the election) a common form of litigation in which employers argue that certain workers shouldn’t be able to vote because they are “supervisors.”
In addition, the proposal would allow petitions and other election documents to be filed electronically. And it would require companies to provide a voter list of employees more quickly (and in electronic format).
The rule changes will now face a 75-day public comment period, including a two-day hearing in Washington in July. The rules may be revised before the NLRB issues a final version, which could be challenged in court. (Read an NLRB fact sheet about the changes and Republican member Brian Hayes' dissention.)