The National Labor Relations Board (“NLRB”) is reconsidering the future of 29 C.F.R. 101, 102, commonly referred to as the “2014 Election Rule,” “Ambush Election Rule,” or “Quickie Election Rule.”
The Quickie Election Rule accelerates the administrative election process, wherein employees vote on whether they the wish to be represented by a union for collective bargaining purposes and, if so, which employees should be included in the bargaining unit. The current version, as modified in 2014, offers workers a fast track to unionization by drastically decreasing the number of days between filing a representation petition and holding an election. The 2014 amendment, which took effect on April 14, 2015, shortened the decades-old timeframe of about 6 weeks to an average of 23 days. This condensed election cycle substantially reduces an employer’s opportunity to communicate with its employees about unionization in general or a particular union. By making it harder for employers to present their arguments through lawful discourse that unionization may not be in the employees’ best interests, the Quickie Election Rule, as it stands, undermines employers’ freedom of speech and employees’ access to be information about workplace implications.
The current version of the Quickie Election Rule includes further administrative burdens for employers: 1) employers must submit a “statement of position” to address all potential issues for the bargaining unit, or risk waiving the right to litigate those issues at a pre-election hearing; 2) pre-election hearings to be held within 7 days of filing the petition, which affords employers minimal time to procure competent counsel, investigate bargaining unit issues, and make critical strategy decision; 3) employers must provide union organizers with extensive personal and occupational information for potential voters, which then exposes those employees to harassment or intimidation by union organizers; and 4) delayed resolution of critical issues—e.g., employee composition of the bargaining unit and supervisory status for the employer—until after the election. Since supervisors are deemed to represent the employer, the delay unnecessarily increases exposure of employers who may be liable for acts or omissions of the statutory supervisors.
On December 14, 2017, days before the Republican chair’s term expired, the NLRB issued a Request for Information (“RFI”). The NLRB will consider public comment as to whether it should retain, modify, or rescind the Quickie Election Rule and, if the rule should be rescinded, whether the pre- or post-2014 version of the rule should govern. On January 26, 2018, the NLRB extended the deadline for public comment from February 12 to March 29, 2018.
The original RFI, including the dissenting views of Board Members Mark Gaston Pearce and Lauren McFerran, can be found here.
