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NLRB Ambush Union Election Rules Are Back On Track. Is Your Company Ready?

Submitted By Firm: Miller Nash Graham & Dunn LLP

Contact(s): Michael Porter, Susan Stahlfeld


Wayne Landsverk

Date Published: 3/2/2014

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Earlier this month, the National Labor Relations Board ("NLRB") issued a controversial set of proposed regulations that, if adopted, will drastically shorten the time available between the filing of a union representation petition and the election date. This new proposed timetable would profoundly affect employers' opportunity to communicate effectively with their employees in the course of a union campaign.

In a nutshell, the proposed rules would establish the following procedures:

  • After the union files an election petition with the NLRB's regional office, the regional director will investigate the petition and issue a notice of hearing setting the hearing for seven days from the date of the petition. In the absence of "extraordinary circumstances," this date will be firm. By contrast, under the current rules, hearings can be scheduled up to two weeks after a petition is filed.
  • No later than the date of the hearing, the employer must file and serve a "Statement of Position" (a brand-new procedure) setting forth its position on all election-related issues that it intends to raise at the hearing, including the NLRB's jurisdiction, the appropriateness of the bargaining unit sought by the union, and the type, date, and location of the election. The rule provides that if an issue is not raised in the statement of position, it is waived and cannot ever be raised.
  • At the hearing, parties will not be permitted to litigate issues that they did not identify in their statement of position. Additionally, if a dispute about eligibility of voters involves less than 20 percent of the unit, it will not be litigated at the hearing and will be deferred until after the election.
  • Based on the record created at the hearing, the regional director will direct an election, setting it for the "earliest date practicable."
  • Within two days of the direction of election, the employer will be required to provide a final list of eligible voters in electronic format to the union, including phone numbers and e‑mail addresses, when available. The current rule allows seven days to provide the eligibility list, and phone numbers and e‑mail addresses are not currently required.
  • Within seven days of the tally of ballots, a party may file with the regional director objections to the conduct of the election or conduct affecting the election results. The regional director will resolve the objections and any potentially outcome-determinative challenges to ballots.
  • Any party may ask the NLRB to review the regional director's pre- or post‑election decisions. But review is discretionary with the NLRB.

The net effect of these proposed regulations is that the timetable from filing the representation petition to election date would be reduced from the current average of 42 days (seven weeks) to 19 days (if the union takes advantage of a 10-day period to utilize the election eligibility list), and as little as 9 days (if the union waives the 10‑day period). The shortened timetable is largely due to elimination of pre-election reviews by the NLRB of the regional director's decision and direction of election. Under the proposed rules, all review issues would be consolidated into one post-election request for review. This process has been characterized by at least one NLRB observer as "vote now, understand later."

Please note that the NLRB's action, which occurred on February 6, 2014, is not a final rule. It is simply a notice of proposed rulemaking. There is a 60-day period for the public to comment. Comments are due no later than April 7, 2014, and the NLRB has announced that it will hold a public hearing on April 10 - 11. A final rule will likely be issued soon after the comment period and hearing.

When these same rules were proposed in 2011, over 65,000 comments were entered into the record and more than 60 individuals testified at the previous public hearing. The NLRB has stated that comments and testimony already in the record will be considered this time around as well. Individuals and organizations wishing to comment on the proposed rules may do so by website (, hand-delivery, or mail. The reference docket ID number is NLRB‑2011‑0002‑65959, RIN 3142‑AA08. It is possible that comments will cause the NLRB to modify some of the most onerous provisions of the proposed rules, as they did in 2011.

Beyond commenting on the proposed rules, now is the time for employers to prepare for the possibility of these rules' becoming effective. In 2011, the last time "quickie" election rules were adopted, the rules were quickly invalidated because of the technicality that the NLRB did not have a valid quorum to enact the rules. Employers should not expect lightning to strike twice. The NLRB is now at full five-member strength and has a clear three-to-two Democrat majority. All expectations are that the rules will be adopted soon after the April hearing. If your company needs an HR tune-up, the next few months would be an ideal time to do it.

Additionally, given the short timelines in the proposed rules, employers will need to be able to react quickly if faced with a union petition. That means that they need to have ready access to all information that will enable them to argue effectively concerning the appropriateness of the unit of employees proposed by the union. Such information would include, at a minimum, company policies applicable to all employees, current organization charts, job descriptions, supervisory status, functional integration of operations, and the like. Seven days is simply not enough time to gather this information from scratch.

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