The NLRB announced yesterday, a Request for Information (“RFI”) on the Board’s 2014 “Quickie Election” representation regulations (at 29 CFR parts 101 and 102). The RFI seeks input on the amendments to representation case procedures, which drastically changed the process for NLRB conducted elections in which employees vote on whether they want to be represented by a union. The RFI was approved by Board Chairman Philip A. Miscimarra and Board Members Marvin E. Kaplan and William J. Emanuel. Board Members Mark Gaston Pearce and Lauren McFerran dissented.
The amendments, which took effect on April 14, 2015, significantly tilted the NLRB’s election procedures in favor of unions by dramatically speeding up the timeframe between the filing of a petition for an election to the holding of an election from an average of approximately six weeks to an average of 23 days. Under the amendments, it is easier for unions to organize unrepresented employees because a shorter period of time between a union’s filing of a representation petition and the holding of an election makes it harder for employers to present their arguments against union representation and lawfully persuade employees that a union may not be in their best interests. Some of the other provisions of the Board’s amendments included:
- Requiring employers to provide union organizers with voluminous amounts of information regarding potential voters, including their names, home addresses, phone numbers, email addresses, work locations, shifts and job classifications, and thus further exposing employees to possible harassment and intimidation by union organizers;
- Submission of an onerous “statement of position” addressing all potential bargaining unit issues the employer intends to raise or risk waiver of the right to litigate those issues at the pre-election hearing;
- Requiring pre-election hearings be held within seven days of the filing of the petition, giving employers little time to find competent counsel and understand the complexities of the laws governing union representation elections, investigate potential bargaining unit issues, and make critical strategy decisions concerning whether to enter into a stipulation election agreement with a union or raise potential challenges to the proposed bargaining unit;
- Deferring critical election issues, such as supervisory status issues, until after the election is held, resulting in substantial liability risks to employers (who will be found liable for the acts and omissions of statutory supervisors and who’s imputed liability may be grounds to overturn the results of an election in favor of a union).
The Board’s amendments substantially reduced the opportunities for employers to communicate with their employees about the union at issue and unionization generally, and thus undermined employers’ free speech rights. The Board’s rules also placed substantial pressure on employers to make critical decisions and produce voluminous information within extremely short timelines or risk waiver, thus jeopardizing employers’ due process rights. For more information on the “quickie election rule,” see our prior article here.
The Board’s RFI asks for public input on the following three questions:
- Should the 2014 Election Rule be retained without change?
- Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
- Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?
The Board will allow interested parties to submit comments on the above questions from December 13, 2017 through February 12, 2018.
Sheppard Mullin’s labor group is analyzing the rules to make recommendations to employers and employer groups about submitting comments in response to the RFI and taking actions to roll back the “quickie election rule”. We will continue to update you here on further developments regarding the RFI. In the event you or your employer group intends to submit a response to the RFI, we recommend you consult with experienced labor counsel.