On February 5, 2014, the National Labor Relations Board ("NLRB") re-issued its controversial “quickie” election rule. As you may recall, that rule, which was opposed by employer groups, the U.S. Chamber of Commerce and others, was invalidated by the D.C. District Court in May 2012. The reissued "quickie" election rule would substantially shorten the time between the filing of a petition and the election to determine whether the union will represent employees--from approximately 42 days to as little as 10 to 14 days.
The D.C. District court struck down the rule in 2012 for procedural reasons. The Board initially issued the rule in 2011, but its implementation was stayed as a result of a decision of the United States District Court for the District of Columbia, which held that the rule had been improperly adopted with only two Board member votes, rather than statutorily required three Board member votes, under the U.S. Supreme Court's landmark 2010 decision in New Process Steel. Since July 2013, however, when the U.S. Senate confirmed President Obama's new appointees, the Board has operated with a full five members for the first time since 2007.
How The "Quickie" Election Rule Would Change Union Elections
Under the current approach, unions must gather authorization cards from at least 30 percent of employees in the unit sought to be represented in order to file a petition for an election with the NLRB. Sometimes employers know about the organizing drive before the petition is filed, but sometimes, they do not. During the pendency of the election (which is currently about 40 days), employers have an opportunity to “campaign” against unionization by providing employees with information about the union, its tactics, and the costs and disadvantages of joining a union. Once the employees vote in the election and the union is certified, the employees may not seek to decertify the union for at least a year, or until after the expiration of the first collective bargaining agreement, whichever is longer.
Under the proposed rule, however, the already short campaign period will be further compressed to as few as 8 to 10 days, resulting in the union getting a quick vote before the employer can make its case against unionization. This means that employees will be voting based on the information provided to them by the union, which is less than complete and somtimes less than factual. The rule also requires employers to provide the union with voter lists in electronic form, including telephone numbers and email addresses. The new rule will also defer most aspects of litigation (such as contesting the appropriateness of the bargaining unit) and any appeals until after the election.
Unions currently win a majority of elections - approximately 69% in 2012. Even without the “quickie” election rule, the Board holds elections promptly: the median in 2010 was 38 days, and 95.1% of elections were held within 56 days. The rule seems unnecessary to meet its stated goal of “more effectively administering the NLRA” and “removing barriers to the fair and expeditious resolution of questions concerning representation.” Instead, its true goal simply appears to be to increase unionization.
Speak Now And Expect Litigation Later
Comments on the proposed rule are due by April 7; the Board will hold a public hearing the same week. Should the rule be enacted, litigation to challenge the rule on various grounds is likely. And as always, stay tuned to Stoel Rives World of Employment Law blog for further updates.