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NLRB Reissues Speedier Union Election Rules

By Kurt M. Graham, Thomas P. Brady / Feb 24, 2014

The National Labor Relations Board ("NLRB" or "Board") has reissued its proposed new rules for representation cases. The proposed rules will allow the Board to speed up the scheduling of union elections and, as a result, quite possibly make it easier for unions to secure election victories. According to the NLRB, the new rules are intended to remove unnecessary barriers to prompt resolution of questions of representation by reducing needless litigation. The new rules make a number of procedural changes to the Board's election processes, including:

  • Limiting the presentation of evidence in pre-election hearings to genuine issues of fact material to the existence of a "question concerning representation." Currently, parties can challenge whether certain employees are eligible to vote, or belong in the petitioned-for bargaining unit. Under the new rules, those issues would have to be resolved, if necessary, after an election has been held.
  • Allowing parties to only file post-hearing briefs with the permission of a hearing officer, rather than as a matter of right. Traditionally, parties have been given 14 days after receiving the hearing transcript to file a brief. This provided the employer with more time to campaign against the union. It is anticipated that hearing officers will not permit briefs except in extraordinary cases.
  • Eliminating parties' right to seek full Board review of a Regional Director's pre-election rulings and delaying Board review of such rulings (provided they have not been rendered moot by the election results) until after an election unless there are "extraordinary circumstances" for the Board to grant an immediate appeal.
  • Making Board review of post-election disputes discretionary.
  • Discontinuing Board policy that the Regional Director will not schedule an election for at least 25 days after the direction of an election. The NLRB's longstanding practice has been to not hold a vote for at least 25 days after direction of election in order to give the NLRB sufficient opportunity to receive and consider parties' pre-election requests for review of a Regional Director's rulings.

How Do the New Election Rules Impact My Business?

The end result is that the new election rules will substantially shorten the time frame for a union election depending on the situation. Since many employers use the time leading up to a union election to talk to their employees about the costs and impact of joining a union, the rule changes will consequently limit the amount of time employers have to express their viewpoints on unionization to their workers and also impact employees' ability to make an informed voting decision. As a result, employers should begin making preparations now to engage in effective union avoidance strategies and prepare for the possibility of the filing of a future election petition in which they may have little to virtually no advance notice of a pending union election and little to no ability to challenge employees' eligibility to vote until after the election has taken place. Employers should consider the following:

  • Review their non-solicitation/non-distribution, property access policies and the enforcement of those policies. If such policies do not currently exist, employers should consider implementing them before the onset of a union campaign;
  • Train management and supervisor on the warning signs of a union organizing drive;
  • Perform a union vulnerability assessment;
  • Train management and supervisors on what they can or cannot do during a union organizing drive; and
  • Prepare a campaign strategy, including handouts and other communications, for opposing a union organizing drive.

Unions will certainly attempt to use the new rules as an opportunity to more quickly organize non-union workplaces, and to also expand their representation of those workforces that have been partially organized. Prior preparation by the employer may avoid many of the problems caused by the new Board rules.

The public has been invited to comment on the proposed changes. The deadline for submitting comments is April 7, 2014. The Board will then consider the public comments before issuing its final election rules.

If you have any questions about how the new NLRB election rules will impact your business or workplace, please contact, Thomas P. Brady at (313) 965-8291, tbrady@clarkhill.com or Kurt Graham at (616) 608-1144 or kgraham@clarkhill.com , or your Clark Hill labor and employment attorney.