Today, the National Labor Relations Board announced that it has adopted a final rule amending its representation case procedures, implementing the controversial “quickie” or “ambush” election rule that makes sweeping changes to the Board’s current procedures. In its press release, the Board characterized its action as “modernizing its rules in light of modern technology, making its procedures more transparent and uniform across regions, and eliminating unnecessary litigation and delay.” Barring any legal challenges, the new rule will take effect on April 14, 2015.
The Board’s action in adopting the rule should come as no surprise to employers. Since the original quickie election rule was re-proposed in February 2014, the only question for employers has been when the Board would finally take action. Not surprisingly, the Board split sharply along party lines, with Republican Members Miscimarra and Johnson dissenting from the three-member Democratic majority’s decision to forge ahead with the rule despite its checkered history (a slimmed-down version of the rule was invalidated by a federal court in May 2012 on procedural grounds) and the myriad of criticism that has been leveled against the rule, particularly by the business community. The dissenters described the new rule as the “Mount Everest of regulations: massive in scale and unforgiving in its effect.” And unfortunately for employers, the dissenters confirmed that the adopted rule is “nearly identical” to the rule that was initially proposed by the Board in June 2011, with only “minor changes.”
The new rule will dramatically change the current procedures governing union election petitions under the National Labor Relations Act. We have covered the quickie election rule in detail in numerous prior alerts, and links to those alerts can be found here. We also discussed the rule and how it would impact employers in detail during a June 2014 webinar. The new rule makes numerous, significant changes to the Board’s current representation election procedures. In effect, the Board has completely overhauled its election procedures. Among numerous other changes, the new procedures:
- Accelerate pre-election hearings;
- Require employers to file position statements on a variety of legal issues on or before the hearing date. Issues not identified in the position statement are waived;
- Require elections to be scheduled at the earliest practicable date;
- Require employers to provide employee contact information, including e-mail addresses and phone numbers;
- Limit the issues that an employer may litigate before an election, including voter eligibility issues; and
- Eliminate the right to file pre-election requests for review and push review to post-election proceedings
In conjunction with adopting the final rule, the Board issued a Fact Sheet and a helpful table that provides a side-by-side comparison of the provisions in the current and newly-adopted procedures. Employers are strongly encouraged to review these guidance materials and consult with legal counsel between now and the April 14, 2015 effective date to become familiar with the significant changes to the Board’s election procedures moving forward and how these changes could impact their ability to be successful in such elections.
David Wheldon is an Associate at the law firm of Franczek Radelet P.C.
