Take Two: NLRB Begins its “Do Over” on Union Election Rules

As expected, the NLRB has again proposed to amend various procedural rules that relate to the way in which union election petitions are processed. These changes are primarily designed to speed up the processing of requests for secret ballot elections. They are widely regarding in the employer community as the "quickie" or "ambush" election rules.

The procedural history of this rulemaking effort begins in 2011 when the NLRB proposed numerous changes to the union election rules.   After receiving extensive public comment, and holding public hearings, the NLRB adopted a subset of the proposed rules on December 22, 2011.  Employer groups then challenged the rule in federal court.  The court held that the NLRB lacked a quorum when it issued the final rule because then Member Hayes (R) was absent from the vote.  While the NLRB appealed the ruling, it ultimately decided to withdraw that appeal and return to the rulemaking process.

The notice of proposed rulemaking issued by the NLRB last week is a nearly verbatim recitation of the 2011 proposal.  It updates some of the data that the NLRB relied upon in 2011.  It also includes a new dissent to the rulemaking effort written by Members Miscimarra (R) and Johnson (R), and a new response from the NLRB majority to that dissent.  Otherwise, the changes proposed are the same.

Some of the changes the NLRB is proposing include:

• Permitting the filing of petitions for election electronically with the NLRB;
• Requiring the union’s showing of interest (usually, signed union authorization cards) to be filed with the petition, rather than permitting an additional 48 hours for the submission of such evidence;
• Requiring that the employer provide to the union, in addition to the names and addresses of employees in the bargaining unit, the email address (if available), location, shift, and classification of each employee;
• Shortening the period of time for making available the foregoing information about employees from seven days to two days;
• Requiring that the representation case hearing begin on the seventh day after filing of the petition;
• Adopting a new "Statement of Position" form in which the parties explain their respective position on any issues relating to the petition (e.g., exclusion of individuals as supervisors or the appropriateness of the unit), and further providing that failure of a party to complete the Statement of Position would constitute a waiver of the right to litigate any issue not identified;
• Delaying until after the election resolution of certain questions about the eligibility of or inclusion of employees in the bargaining unit, provided that the numbers affected by such questions do not exceed 20% of eligible voters;
• Limiting the types of evidence that can be introduced at the representation case hearing;
• Limiting the opportunity to file written briefs after the close of the representation case hearing;
• Eliminating the right of a party to request that the NLRB review decisions of the Regional Director regarding the representation petition; and
• Requiring that a party filing objections to the election results submit their objections, and the evidence supporting those objections, within seven days after the votes have been counted.

For the labor professional, the NLRB’s changes are quite significant.  For some of the changes, their significance is easy to grasp.  For example, the substantial expansion of the information about employees that the employer must provide to the union after a petition is filed is one that helps unions in their organizing efforts.  Other changes, while more procedurally obscure, are substantively even more troubling.  For example, limiting the resolution of questions about the unit means that employees, when they go to vote in a secret ballot election, may not understand with any degree of certainty with whom they are banding together to negotiate with their employer. 

Those desiring to comment on the proposed rulemaking have until April 7, 2014 to do so.