On February 5, 2014, the NLRB re-issued its proposed amendments to the rules and procedures governing union elections, sometimes known as the "quickie election" or "ambush election" rules. In general, these rules are designed to reduce the time period for holding a union election from approximately six weeks to approximately three weeks from the date of the filing of the union petition (request) for an election with the NLRB. The main vehicle to accomplish these shorter elections is to delay resolution of disputes over voting eligibility in many cases until after the election occurs. Unions have long argued that employers try to stall elections, making it harder for unions to win. Employers counter that quickie election rules are actually designed to limit the opportunity to exercise free speech to engage the voters on the union campaign issues.
Significantly, the proposed rules are identical to previous proposed rules regarding representation elections published on June 22, 2011. The earlier proposal resulted in more than 65,000 public comments, as well as two days of comments at a public hearing. Major portions of the proposed rules were actually implemented in April, 2012, in a final rule in which the NLRB deferred portions of the proposed rules for further consideration. In fact, the rule only remained in effect for about a month, as it was quickly struck down by a federal district court on the basis that the NLRB lacked a quorum when it issued the final rule.
It is noteworthy that the final rule that was published back in December, 2011 did not include provisions regarding the electronic filing of petitions, the requirement that hearings on voter eligibility be set for seven (7) days after service of the notice of hearing, the requirement of formal statements and positions to be filed before or at the hearing, inclusion of e-mail addresses and telephone numbers of employees on the voting list, and the changing of the period for filing the voting list from seven (7) to two (2) work days after the direction of election. All of these items are now included in the new proposed rule published on February 5. Thus, the proposed rules go beyond the new rules briefly implemented during 2012.
In issuing the new proposed rule, the Board states that it is reviewing the rules with an open mind, and that no final decisions have been made. The Board states that it will again review all of the comments filed in response to the original proposals, as well as any new responses filed to the current proposal, with the deadline for comment being April 7, 2014. In addition, the Board will hold a public hearing during the week of April 7, 2014, at which time members of the public may address the proposed amendments and make other suggestions for improving the Board's representation procedures.
Wimberly & Lawson Comments: There are many reasons for employers to be concerned about the proposed rules. History shows that unions request an election at the height of their strength, and sometimes employers are not even aware of the union organizing until the petition is filed. It takes an employer some period of time to determine election issues, locate qualified labor counsel, and try to follow the law in stating its position on unionism to its workforce. It can be expected that union winning percentages in NLRB elections will increase should the new procedures go into effect.
While some suggest that unions are at a disadvantage under the current election procedures, unions are currently winning well over 60% of all secret ballot elections. Further, the mere existence of the "quickie election" rules will likely encourage unions to significantly increase their organizing. During the short period of time, less than one month, in which the quickie election rules were in effect during 2012, the number of union election petitions filed more than doubled.
Wimberly & Lawson filed numerous comments to the prior proposed rules, and one of them was a simple suggestion that the NLRB chose not to mention in its comments. If the Board wants to hold a union election within three (3) weeks after the filing of a union request for an election, but also claims that these procedures are not designed to discourage full campaigning on the union election issues, why not require unions to give an employer notice of their organizing activities prior to soliciting signature cards requesting an election? This procedure would still allow unions to hold elections when they want to, while allowing employees to be fully aware of all the pros and cons as communicated by all parties to the election proceedings.
Further, there are numerous other reasons why the quickie election rules are inappropriate. The likely ultimate result may be to shift much of the litigation from the NLRB to the federal courts of appeals. If the NLRB is going to shorten or eliminate various due process procedures at the NLRB level, many parties will feel the only way to get a fair hearing will be to appeal NLRB decisions to the federal courts.
