Having recently completed my latest National Labor Relations Board (“NLRB”) post-election representation hearing, I found myself contemplating the impact of the NLRB’s new election rules (which some have dubbed the “Quickie Election Rules”). Whether you love them (as most labor unions and labor practitioners seem to do) or hate them (which seems to be the universal response from employers and the management bar), this practitioner predicts that the new election rules will challenge all parties in unexpected ways. Manufacturers would be well served to contemplate the “new world” created by the “new rules.”
The current election rules call for the prompt processing of union representation cases. Generally, if the parties are able to agree on the issues involved in an election, a union representation election will be held with 42 days (6 weeks) of the filing of the petition. Any post-election challenges to the election must be filed within 7 days of the election and the evidence supporting the election objections must be filed within an additional 7-day period. If the NLRB orders a hearing on the objections, the hearing generally will be held within four weeks of the election. Post-hearing briefs must be filed with 7 days of the close of the hearing, with an additional (discretionary) 7 days which can be granted on a showing of “cause.”
Because a union organizing campaign usually takes place in secret, as a practical matter, a manufacturer seeking to present an alternative to the “vote yes” message of organized labor has about six weeks to organize and present its side. Six weeks may seem like a great deal of time, but in the context of an organizing campaign, that time always goes by quickly. Once the election is held, any party challenging the fairness of that election (i.e., whether a union or a manufacturer that claims that the employees did not have a fair opportunity to express their choice) has a reasonable period of time to present arguments and evidence before a neutral fact-finder.
The pace of the current process has been questioned by labor professionals on both sides of the debate. Because manufacturers do not know when an election petition is about to be filed (union campaigns being by their nature secret), often the speed by which the current process moves requires both the employer and its counsel to “drop everything” to focus on the representative election. Getting ready to take the sales team to that long-planned and hard-to-arrange pitch meeting? Sorry, your presence is required elsewhere. Celebrating your child’s wedding at a remote location? Hold on, there are legal proceedings afoot. Annual shareholders’ meeting next week? Well, maybe you can appear by video-conference.
While the old election rules generally required the parties to drop everything, the new election rules will require them to move at warp speed. With an April 15, 2015 effective date, the new election rules will require elections to be held within 15 days of the filing of the petition (and if the union consents, within 10 days of the petition). If the parties are unable to agree on all the legal issues involved, a hearing will be held on those issues within 8 days of the filing of the petition and a position statement regarding the issues must be filed one day prior to the hearing. (Failure to file a position statement results in the waiver of all legal issues which could have been raised.) Election objections will still be due within 7 days of the election, but now all evidence in support of those objections must be filed at the same time.
The NLRB has provided a comparison of some of the differences between the old and new rules.
The practical effect of the new election rules will be to penalize manufacturers and others that are either unaware of union organizing efforts or fail to react quickly when a case is filed. The pace of the NLRB’s processes require key decision-makers and their counsel to be on “speed dial” at the first sign of an organizing campaign or lose the right to present an alternative view. Paradoxically, the rules may also reward manufacturers that more closely monitor the union sentiments of their employees, as those aware of an organizing effort from the beginning will have a distinct advantage over others. In the view of many, the new election rules elevate speed over every other consideration – including employee free choice and fundamental due process.
Time will tell whether the NLRB will be able to match the rapid pace it expects from the parties in a representation election. With no disrespect intended to the women and men who serve the NLRB, the NLRB’s new election process would be ill-served if it requires the parties to “hurry up” only to find NLRB decisions tied up in the seeming endless decision-making process. In this respect, “only time will tell.”