NLRB Again Proposes "Quickie Election" Rules

            The National Labor Relations Board has proposed to reissue its 2011 "quickie election" rules, which were invalidated in a court ruling based on a procedural error in their adoption. The revised NLRB election rules would avoid most pre-election disputes - even concerning which employees are eligible to vote - in order to get to an election much quicker. If the proposed rules are implemented, as most NLRB watchers suspect will occur, unions will likely have a huge leg up in their efforts to organize a workplace.

            Under existing rules, elections are typically held about six weeks after the union's filing of a petition requesting the NLRB to schedule a secret ballot. This time period allows the parties to work out the details of the election, sort out any voter eligibility issues and communicate with the workforce their respective views about the effects unionization is likely to have. The new rules would shorten that period considerably, to possibly as few as 10 days in some cases, leaving the employer little time to effectively respond.

            In addition, the employer would be required to furnish the union with more employee personal contact information and to do so sooner. Currently, an employer is required to disclose only the full names and home addresses of employees after the election details are finalized. The proposed rules would add available telephone numbers, available email addresses, work locations, shifts and job classifications and the data must be furnished within 48 hours of the filing of the petition. This additional information would not only give the union two new ways to contact employees to promote unionization, it would also provide the union a better picture of the employer's operations and each employee's role therein.

            The proposed rules - which have been characterized by some as the "ambush election proposal" - could make it far easier for unions to win NLRB elections because the employer will have very little time to communicate with employees between the time the NLRB election petition is filed and when the vote is taken. In contrast, there are no set time limits for a union to solicit employee support before filing an election petition. Unions often work in secret for weeks or months before going public by filing an NLRB election petition.

            We will continue to monitor progress of the proposed rules and any legal challenges thereto. The NLRB proposal was published in the Federal Register last week, with public comments due by April 7. The NLRB will hold a hearing that same week. Thereafter, the Board may amend or adopt the proposed rules, after responding to the public comments.

            The likely adoption of the new rule underscores the importance of ongoing communication, education and engagement with your employees. It also underscores the need for management to become fully conversant with the complex legal rules which all supervisory employees must know and follow when communicating with employees about a union's organizing effort.