On November 26, 2013, the National Labor Relations Board (NLRB) issued its semiannual regulatory agenda, which, tellingly, focused on one issue—the Board’s proposed changes to the rules that will speed up union representation elections. The Board’s “quickie” election rules are widely viewed as favorable to unions because under these rules, employers would have less time between the filing of the union’s petition and the employees’ vote.
Over the past several years, the NLRB has considered a number of rule changes aimed at facilitating quickie elections. On April 30, 2012, several of the contemplated quickie election amendments took effect—only to be set aside by the U.S. District Court for the District of Columbia less than one month later because the Board lacked a quorum when it passed the final rule. Pursuant to the court’s ruling, the Board announced that it was “temporarily suspending implementation” of the quickie election amendments, which would have:
- limited the scope of the pre-election hearing to determining whether “a question concerning representation exists” and empowered NLRB hearing officers with discretion to exclude evidence unrelated to the narrow questions of representation;
- eliminated the current regulation that prohibits an election sooner than 25 days after the date of the Decision and Direction of Election, that allows elections to be held within 10 days of that decision and that greatly reduces the time between the petition and the election;
- provided hearing officers with broad discretion to reject post-hearing briefs; and
- required “special” permission from a local regional director to appeal any post-hearing pre-election ruling to the NLRB and empowered the Board to reject pre- or post-election appeals.
In the original proposed rule, the NLRB considered several other changes, which were not included in the April 30, 2012 final rule. These “original” proposed changes included requiring the employer to produce a voter list, including employees’ phone numbers and email addresses, prior to the pre-election hearing—providing the union with unprecedented access to employees. In addition, the original rule contained a provision further compressing the election timeframe, by allowing the regional director to set a pre-election hearing to begin seven days after a hearing notice was served (as opposed to 10-14 days under the current practice) and the post-election hearing 14 days after the tally of ballots. Make no mistake; these changes are not off the table. The NLRB is “continuing to deliberate” these changes and recently voluntarily dismissed its appeal to the D.C. Circuit Court of Appeals—thus paving the way for it to repromulgate a new (and possibly more severe) “quickie” election rule.
While not tipping its hand with regard to any new proposed changes to the election rules, the NLRB’s September 2013 agenda demonstrates the Board’s steadfast initiative to make it easier for unions to win elections by reducing the amount of time employers have to communicate with their employees between the initial filing of the union’s petition and the final vote. Recognizing the Board’s continuing resolve to compress the time period between the union’s petition and the representation election, the strategically-minded employer should increase its efforts to communicate “pro-company” messages to employees at reasonable opportunities throughout the year.
Mike G. Johnson is an associate in the Nashville office of Ogletree Deakins.