Déjà vu all over again. As predicted in an earlier post here, on Wednesday, February 5, 2014, the National Labor Relations Board (“Board” or “NLRB”) announced “new” proposed rules to expedite the union election process. If this sounds familiar, it is because in June 2011 the Board proposed, in substance, the same expedited election rules and in December 2011 decided to approve and implement certain of the new rules — but that decision was invalidated by a district court over a quorum issue.  The new rules will not have the quorum defect of the old rules.
The proposed rules announced today are reported by the Board to include, “in substance,” all the rules originally proposed in June 2011, including both those that were approved in December 2011 and later invalidated as well as those proposed rules the Board had opted not to issue in 2011. The new proposed rules, to the extent they are as reported in substance identical to the prior proposed rules:
  • Provide an NLRB hearing officer with the ability to limit the evidence that can be introduced at a representation hearing to genuine issues of material fact concerning whether there is a question concerning representation.
  • Provide the hearing officer with the authority to deny a party the right to file a post-hearing brief.
  • Eliminate a party’s right to have the NLRB review a decision by a regional director that directs an election.
  • Eliminate current language that requires an election to be conducted within 25-30 days after the direction of the election, thereby permitting elections to be held as early as 10 days after the Regional Director’s decision.
  • Eliminate a party’s right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes.  NLRB review of post-election disputes will now be discretionary.
  • Require that representation hearings be held within seven days of the filing of a union’s representation petition.
  • Permit electronic filing of petitions and other documents.
  • Require an employer to prepare and file a comprehensive “statement of position” on the union’s election petition, which would be due no later than the date of the hearing.  Any issues omitted by the employer from its statement would be waived by the employer and may not be raised later.
  • Require the employer to provide the union in electronic format the Excelsior list of eligible voters and expand the content to include, not only the names and addresses of voters, but employee email addresses and telephone numbers, work locations, shifts and classifications.
  • Require that the Excelsior list be given to the union within two work days of the Direction of Election instead of the current rule allowing seven work days.
If all or even some of these new proposed rules are properly adopted and survive challenge, they will significantly shift the playing field and make it far easier for unions to organize employees. Employers will have very limited opportunities after a petition is filed in which to campaign or even to prepare a challenge to the appropriateness of the proposed bargaining unit.The actual Notice of Proposed Rulemaking containing the new proposed rules will appear in the Federal Register tomorrow. The deadline for submitting comments on the proposed rules is April 7, 2014.  A public hearing also been scheduled during the week of April 7th as well. For a more in-depth review of the new rules and their impact on representation petitions, read our management alert that has been issued and posted at seyfarth.com.

This is only Round 2 of what likely will be a knock-down, drag out fight over the rules. No doubt challenges will be made to any rules eventually adopted on substantive grounds and perhaps procedural ones as well. Please continue to follow this blog for future developments on the new expedited election rules.