As anticipated, on December 12, 2014 the NLRB announced that the final “Quickie” Election Rule will be published in the Federal Register on December 15, 2014 and will take effect on April 14, 2015. Among other changes, the rule will shorten the time between the filing of a petition and the election for union representation from approximately 42 days to as little as 10 to 14 days. The final rule is substantially similar to the rule that was invalidated by the D.C. District Court for procedural reasons in May 2012 and re-issued in draft form last February.
The NLRB contends that the rule will “reduce unnecessary litigation and delay” in the context of union organizations. In reality, the new rule will be a boon to organized labor, speeding up the union election process while limiting an employer’s ability to challenge potential voter eligibility until after the election has already taken place.
As we reported earlier this year, under the current approach, unions must gather authorization cards from at least 30 percent of employees in the unit sought to be represented in order to file a petition for an election with the NLRB. Sometimes employers know about the organizing drive before the petition is filed, but sometimes they do not. During the pendency of the election (which was formerly about 40 days), employers have an opportunity to provide employees with information about the union, its tactics, and the costs and disadvantages of joining a union.
Under the new rule, the campaign period is further compressed to as few as 8 to 10 days, resulting in the union getting a quick vote before the employer can make its case against unionization. This means that employees will be voting based on the information provided to them by the union, which is less than complete and often less than factual. Once the employees vote in the election and the union is certified, the employees may not seek to decertify the union for at least a year, or until after the expiration of the first collective bargaining agreement, whichever is longer.
The rule also requires employers to provide the union with voter lists in electronic form, including home and mobile telephone numbers and personal email addresses when it has them available. The new rule also defers most aspects of litigation (such as contesting the appropriateness of the bargaining unit) and any appeals until after the election.
What should I do now?
Although litigation to challenge the rule is likely, employers should ready themselves to respond quickly to organizing campaigns. Steps you can take now include:
- Educate managers and supervisors about the organizing process and what they can do to educate employees about the benefits of their current employment situation.
- Update job descriptions and job titles for supervisors and be sure you are clear on what constitutes supervisory status under Board law.
- Consider preparing basic election campaign information for employee distribution if the union comes knocking.