Hunton Employment & Labor Perspectives

The National Labor Relations Board announced its Final Rule governing union representation case procedures, claiming that such Rule aims to “remove unnecessary barriers to the fair and expeditious resolution of representation questions.”  Specifically, the Rule claims to “streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.”

The Final Rule implements the following amendments to current procedure:

• Most union representation elections will be held 10 to 21 days after a petition has been filed.
• Parties are able to file and transmit documents, including petitions, electronically. 
• Employers must include available personal email addresses and phone numbers of voter list employees to the union.
• In most cases, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties.  Post-election hearings will generally open 14 days after objections are filed. 
• The non-petitioning party (typically the employer) is required to file with the regional director and serve on the other parties a position statement, generally the day before the pre-election hearing opens.  When serving other parties, the position statement must include a list of prospective voters, their job classifications, shifts and work locations. 
• The petitioning party (typically the union) is required to respond to the issues raised by the non-petitioning party at the opening of the hearing.  Litigation inconsistent with the positions taken by the parties will generally not be allowed.  
• The employer must post a Notice of Petition for Election within two business days of the region’s service of the petition.  
• Pre-election litigation is generally limited to only issues necessary to determine whether an election should be conducted.  A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved to determine if an election should be held. 
• All parties have the opportunity for oral argument before the close of the hearing.  Written briefs will only be allowed if the regional director determines they are necessary.
• The parties may seek review of all regional representation-case rulings through a single post-election request, if the election results have not made those rulings moot.  The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.  The Board will have discretion to deny review of a regional director’s post-election rulings, under the same standard that has governed Board review of regional director pre-election rulings.

As is apparent from the bulleted amendments above, the Final Rule makes it easier for unions to organize employee workforces through an accelerated election process.  Employers will face immense pressure to not only comply with the Final Rule’s requirements, but to also run their own election campaign within a significantly constricted time period.  The Final Rule is scheduled to go into effect on April 14, 2015.