On December 12, the National Labor Relations Board (the "Board") finalized a new rule amending its representation case procedures. Employers should be aware of how the new rule will affect union organization in the workplace. The rule is aimed at "streamlining and modernizing" union election procedures so as to "expeditiously resolv[e] questions of representation." The rule was published in the Federal Register on December 15 and will take effect on April 14, 2015. The new rule:
- Provides for electronic filing and transmission of election petitions and other documents;
- Generally requires the Regional Director to set a pre-election hearing eight days after a hearing notice is served and a post-election hearing 14 days after the filing of objections;
- Generally requires non-petitioning parties to identify any issues they have with the election petition in a Statement of Position one business day before the pre-election hearing opens and then requires the petitioner to respond to such issues at the beginning of the hearing;
- Generally requires employers to provide as part of its Statement of Position a list of prospective voters with their job classifications, shifts, and work locations one business day before the pre-election hearing opens;
- Limits litigation of issues at the pre-election hearing to issues raised and positions taken in the Statement of Position and defers litigation of eligibility and inclusion issues to the post-election stage;
- Provides for oral argument at the close of the pre-election hearing and limits written briefs to when deemed necessary by the regional director;
- Eliminates the need to request review of a pre-election decision before the election to preserve the right to challenge the decision;
- Eliminates automatic stays of elections caused by challenges to the regional director's pre-election decision;
- Narrows the issues the Board must review in post-election disputes to those issues raised; and
- Requires employers to submit a voter list within two, as opposed to seven, business days following the regional director's approval of an election agreement or decision directing an election, and requires employers to include voters' personal email addresses and phone numbers (if available) on the voter list.
As a result of the new rule, elections could theoretically be held in as few as 10 to 12 days.
It is unlikely that the new rule will go unchallenged. The rule has been heavily criticized as sanctioning "union ambush tactics." Several employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, have already suggested that they intend to file lawsuits. However, employers should not bank on courts overturning the new rule. Employers should instead familiarize themselves with their new obligations and be prepared for expedited elections.
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