The National Labor Relations Board's controversial rule to speed up the union election process took effect Tuesday, despite Congressional and legal challenges. The new rules could generate an increase in organizing activity and representation petitions as unions take advantage of the new framework.
The NLRB’s new rule allows union elections to be held as soon as 11 days after a petition is filed, though a 14- to 21-day time frame is more realistic. The median time from petition to election during the past decade has been 38 days. The new rules favor quick elections, which favors the Union’s position. The Union can be “courting” employees for months without the employer knowing about the activity, and then the employer has only three weeks to convince employees to remain Union free. There is speculation among some that Unions have been sitting on petitions waiting for the new regulations to take effect, and predicted a surge in new petitions would come soon after April 14.
Among other changes, the new rules put off employer challenges to voter eligibility issues until after an election is held, eliminating a 25-day delay that normally occurs between the time a regional director directs an election and the actual election itself. The new rules also call for a pre-election hearing eight days after a hearing notice is served. Also creating controversy is provision augmenting the list of voter-workers the employer has to submit which should now include phone numbers and email addresses, as opposed to just names and addresses.
The rule will now allow for petitions to be served electronically, which raises the possibility that a crucially important email message might be lost in the shuffle. Employers also now face a 48-hour deadline to post and disseminate a notice for petition of election after a notice of hearing is served, and failure to do that can jeopardize the results of an election.
Notable Changes in Board Procedures:
Electronic Filing/Communications – Parties may file documents, such as petitions, electronically, rather than by fax or mail. Parties and the NLRB’s regional offices can transmit documents electronically, rather than using slower or more expensive forms of communications, such as mail or express delivery services.
Election Voter List – The employer must include available voters’ personal email addresses and phone numbers on the voter list in order to permit non-employer parties to communicate with prospective voters about the upcoming election using modern forms of communication.
Identifying Disputed Issues – The non-petitioning parties will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens. The petitioner will be required to respond to the issues raised by the non-petitioning parties at the opening of the hearing. Litigation inconsistent with the positions taken by the parties will generally not be allowed.
Litigation of Eligibility and Inclusion Issues – Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage, if those issues do not have to be resolved in order to determine if an election should be held. In many cases, those issues will not need to be litigated because they have no impact on the results of the election.
Post Hearing Oral Argument and Briefs – All parties will be provided with an opportunity for oral argument before the close of the hearing. Written briefs will be allowed only if the regional director determines they are necessary.
Review of Regional Director Rulings – The parties may seek review of all regional representation-case rulings through a single post-election request, if the election results have not made those rulings moot. The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.
Review Standard for Post-election Issues – The Board will have the discretion to deny review of regional director post-election rulings, under the same standard that has governed Board review of regional director pre-election rulings for many years.
Claims of Increasing Transparency and Standardizing Board Process
Earlier and more complete information to the parties – When the petitioner files its petition, it will be required to simultaneously serve a copy of the petition, along with a more detailed Agency description of representation case procedures and an Agency Statement of Position form, on all parties identified in its petition in order to provide them with the earliest possible notice of the filing of the petition and Board procedures for processing those petitions. NLRB regional offices will serve a Notice of Hearing and a Notice of Petition for Election (along with a copy of the petition, description of representation case procedures and the Statement of Position form) on all parties.
The non-petitioning parties will be required to respond to the petition (generally the day before the hearing opens) by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition. As part of its Statement of Position, the employer will be required to provide all other parties with a list of prospective voters, their job classifications, shifts and work locations.
Earlier and more complete information to employees - The employer is required to post a Notice of Petition for Election containing more detailed information on the filing of the petition and employee rights within two business days of the region’s service of the petition. The Notice of Election will provide prospective voters with more detailed information about the election and the voting process.
Scheduling of Hearings – Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open eight days after a hearing notice is served on the parties. Post-election hearings will generally open 21 days after the tally of ballots.
Comparison of Current/New Procedures
The following table provides a side-by-side comparison of current and new procedures:
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Current procedures
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New procedures
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Parties cannot electronically file election petitions. Parties and NLRB regional offices do not electronically transmit certain representation case documents.
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Election petitions, election notices and voter lists can be transmitted electronically. NLRB regional offices can deliver notices and documents electronically, rather than by mail.
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The parties and prospective voters receive limited information.
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Parties will receive a more detailed description of the Agency’s representation case procedures, as well as a Statement of Position form, when served with the petition. The Statement of Position will help parties identify the issues they may want to raise at the pre-election hearing. A Notice of Petition for Election, which will be served with the Notice of Hearing, will provide employees and the employer with information about the petition and their rights and obligations. The Notice of Election will provide prospective voters with more detailed information about the voting process.
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The parties cannot predict when a pre- or post-election hearing will be held because practices vary by region.
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The Regional Director will generally set a pre-election hearing to begin eight days after a hearing notice is served and a post-election hearing 21 days after the tally of ballots.
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There is no mechanism for requiring parties to identify issues in dispute.
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Non- petitioning parties are required to identify any issues they have with the petition, in their Statements of Positions, generally one business day before the pre-election hearing opens. The petitioner will be required to respond to any issue raised by the non-petitioning parties in their Statements of Positions at the beginning of the hearing. Litigation inconsistent with these positions will generally not be allowed.
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The employer is not required to share a list of prospective voters with the NLRB’s regional office or the other parties until after the regional director directs an election or approves an election agreement.
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As part of its Statement of Position, the employer must provide a list of prospective voters with their job classifications, shifts and work locations, to the NLRB’s regional office and the other parties, generally one business day before the pre-election hearing opens. This will help the parties narrow the issues in dispute at the hearing or enter into an election agreement.
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Parties may insist on litigating voter eligibility and inclusion issues that do not have to be resolved in order to determine whether an election should be held.
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The purpose of the pre-election hearing is clearly defined and parties will generally litigate only those issues that are necessary to determine whether it is appropriate to conduct an election. Litigation of a small number of eligibility and inclusion issues that do not have to be decided before the election may be deferred to the post-election stage. Those issues will often be mooted by the election results.
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Parties may file a brief within seven days of the closing of the pre-election hearing, with permissive extensions of 14 days or more.
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Parties will be provided with an opportunity to argue orally before the close of the hearing and written briefs will be allowed only if the regional director determines they are necessary.
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Parties waive their right to challenge the regional director’s pre-election decision if they do not file a request for review before the election. This requires parties to appeal issues that may be rendered moot by the election results.
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Parties may wait to see whether the election results have made the need to file a request for review of the regional director’s pre-election decision unnecessary and they do not waive their right to seek review of that decision if they decide to file their request after the election.
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Elections are delayed 25-30 days to allow the Board to consider any request for review of the regional director’s decision that may be filed. This is so even though such requests are rarely filed, even more rarely granted and almost never result in a stay of the election.
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There will be no automatic stay of an election.
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The Board is required to review every aspect of most post-election disputes, regardless of whether any party has objected to it.
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The Board is not required to review aspects of post-election regional decisions as to which no party has raised an issue, and may deny review consistent with the discretion it has long exercised in reviewing pre-election rulings.
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The voter list provided to non-employer parties to enable them to communicate with voters about the election includes only names and home addresses. The employer must submit the list within seven days of the approval of an election agreement or the regional director’s decision directing an election.
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The voter list will also include personal phone numbers and email addresses (if available to the employer). The employer must submit the list within two business days of the regional director’s approval of an election agreement or decision directing an election.
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