NLRB Issues New Election Rules
In a 3-2 partisan vote, the NLRB amended its internal rules on how it will conduct elections involving private sector employers. These amendments have variously been called the “quickie election rules” and the “ambush election rules.” The ultimate goal, and effect, of the rules will be to shorten the time period between the filing of a petition and the holding of an election. Currently, elections are generally held within 42 days of the filing of a petition. Under the new rules, elections could be held in as few as three weeks from the petition's filing. These rules favor unions (who file the majority of the petitions) because the unions can choose to file petitions when they are ready for an election but the employees and employers are not. The shortened timeframes will threaten an employers’ ability to inform employees adequately of their right to choose not to join a union.
There are more devils in the details. In addition to the employees' mailing addresses that employers have always been required to give unions prior to elections, employers will now be required to give the union employee email addresses and phone numbers as well. If an employer believes that there are reasons why the petition should be dismissed or the voting unit modified, a hearing will be held within 8 days of filing the petition, and the employer must identify every
issue it wants to litigate no later than the day prior to the hearing or it may lose the right to raise the issue. Under the new rules, who is eligible to vote in the election will typically be determined only after
the election if those eligibility and inclusion issues affect only a small percentage of an appropriate bargaining unit. Post-hearing briefs will be allowed only
if the Regional Director determines they are necessary. Regional Director decisions will be reviewed only after
the election is held. Attached is a copy of the chart
published by the Board showing what it considers the changes to be.
A court held a prior effort to amend the rules was unlawful because it was enacted without a lawful quorum voting on it. That issue does not exist with respect to these rules. Whether the Congress will withhold funding or take other action to impact this Agency action is yet to be seen. For now, employers need to consider how to communicate their position on unionization clearly to their employees and also train supervision to know what to look for when an organizing drive is taking place. Under the new rules, employers will have much less time to effectively communicate with employees once a petition is filed. Now more than ever, it is true that an employer will run on its record.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.