NLRB Finalizes Union Election Rules to “Modernize” and “Streamline” Election Process at Nonunion Workplaces

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May 5, 2015

On December 12, 2014, the National Labor Relations Board finalized its much-maligned representation election rules designed to make union organizing drives at nonunion workplaces much easier. The new rules make organizing easier by: (1) significantly reducing the time between when a representation election petition is filed and when the secret-ballot election is held [some observers predict a shift from 38 days to as few as 9 days, which will make running an effective campaign more difficult for employers]; and (2) creating new procedural requirements that force employers to focus their attention on matters other than running an effective “counter” election campaign—at a critical time in the battle for the hearts and minds of employees.

In Orwellian fashion, the Board, however, characterizes the move as an effort to “modernize” and “streamline” the process for resolving representation disputes. There is no question the new rules trim some employer-friendly fat from the current process. The new, more “union friendly” rules are set to take effect on April 14, 2015. Labor relations wonks and rubes alike can find useful information, including a handy comparison chart comparing the current rules to the new rules on the Board’s “NLRB Representation Case-Procedures Fact Sheet” page, found here: http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-representation-case-procedures-fact-sheet.

The most controversial aspects of the now-finalized rules are:

  • Elimination of the current 25-30 day waiting period between the pre-election hearing [used to establish the composition of the appropriate proposed bargaining unit] and the representation election—a period of time that is designed to facilitate appeals.
  • Requirement that employers must furnish the voter list within two business days following a determination that an election will be held, instead of the current seven-day period.
  • Requirement that employers must furnish employees’ personal telephone numbers and personal email addresses (if available to the employers—which, of course, generally are available to employers).
  • Requirement that employers must now create and file a pre-hearing “Statement of Position” prior to the pre-election hearing—a high pressure document that must set forth all of the employer’s objections to the petition and other issues in dispute, or all objections and issues are forever waived.

In light of this recent development, and the Board’s December 11th email access decision [see my previous blog post here National Labor Relation Board is “Not-So-Secret” Santa to Organized Labor – Delivers Union-Friendly Gift in Advance pf the Holidays], nonunion employers are encouraged to work closely with labor relations counsel to prepare for an anticipated uptick in union organizing activities. Preparation should include standard union awareness training and the development of union campaign materials.

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