• NLRB Revives “Quickie” Election Rule
  • February 18, 2014 | Author: David R. Keller
  • Law Firm: Barley Snyder - Lancaster Office
  • Back in 2011, the National Labor Relations Board (NLRB) proposed a rule that would have significantly shortened the period between the filing of a petition to certify a union and the holding of a representation election. Presumably, this proposal was designed to increase unions’ success rate in such elections. The proposed rule, though, met stiff resistance. One federal district court invalidated the rule. There are also multiple cases pending before federal appeals courts, but those courts have not yet acted on those cases because of the Noel Canning case, currently pending before the U.S. Supreme Court. In Noel Canning, the Supreme Court will decide whether actions taken by NLRB board members serving recess appointments are valid.

    But the NLRB now has a full complement of members appointed by the President and confirmed by the Senate, so there is no issue of the validity of recess appointments. And last week the fully constituted NLRB reissued its proposed rule shortening the period between certification and election.

    Currently, the NLRB attempts to hold an election within 42 days after a union files a petition, and the average number of days is approximately 38. The NLRB has not proposed a stated goal regarding this period, but clearly the NLRB seeks a time reduction. Experts have speculated that the proposed rule will reduce the number of days from petition to election down to approximately 20 to 22 days, which obviously will limit an employer’s opportunity to present its viewpoints to the voting employees. Also, the new rule, if adopted, would require a hearing within seven days of the petition’s filing, and the hearing officer would be required to limit testimony and exhibits to only those issues the hearing officer considers “genuine.” Moreover, even if the hearing officer finds an issue “genuine,” the proposed rule would require that the hearing officer defer ruling until after an election takes place unless the dispute implicates 20% or more of the potential voters in the proposed bargaining unit. Essentially, this means that disputes that are currently decided before the election will only be litigated and determined after the election has been completed. The result would often be a “quickie” election, followed by litigation and a long period of uncertainty.

    The NLRB’s proposed rule also shortens the period for an employer to provide a list of names and addresses of employees to the union from the current seven days to two days. The proposed rule would also require the employer to list eligible voters’ phone numbers and e-mail addresses when that information is available.

    Although the rule, in its current form, would significantly alter the landscape for employers seeking to avoid unionization, this is just a proposed rule. The NLRB will give the public an opportunity to comment on the proposed rule and will hold a hearing during the week of April 7, 2014. It appears, however, there are enough votes on the five member board to ultimately adopt this rule, or something very close to it.