Stephen R. McCutcheon, Jr., Attorney at Law
December 15, 2014
As was expected, the National Labor Relations Board (“NLRB”) adopted a new rule to expedite elections union representation cases. This rule has previously been referred to as the “ambush elections” or “quickie elections” rule. Over the dissent of two Board members, a majority has adopted the rule, which will go into effect on April 14, 2015.
It has been characterized by a majority of the Board as being designed to provide for “expeditious resolution of representation questions,” but this rule will have adverse effects on the ability of employees to exercise a free and informed vote when deciding whether or not they will be represented by a union that outweigh any perceived benefits from an accelerated election. Notwithstanding that the purpose of the National Labor Relations Act (“NLRA”) is to protect employee free choice – including the right to “refrain from any or all” collective activities – the Board appears to have sacrificed due process and informed decisionmaking for speedy elections.
The greatest change wrought by the new rule is to require that the election be scheduled “at the earliest date practicable.” The long standing election rules were not characterized by marked delays, with elections generally occurring within 45 days of an election petition, and under this new rule, elections will be held 10 to 21 days from the petition. In accelerating voting, the board has treated due process and ordinary pre-election procedures, such as deciding who is eligible to vote and bargaining unit parameters, as inexcusable delays that must be postponed until after the election. You are not alone if you are puzzled over the wisdom of the Board’s decision that it is appropriate to hold a representation election where eligibility to vote, the size and scope of the bargaining unit, and who may participate in the campaign have not been determined.
The rule will also have significant adverse impacts on employers, such as requiring employers identify disputed issues in a position statement generally due the day before the pre-election hearing, and precluding from later consideration any issue, evidence, or argument that was not raised before the election. This may ultimately result in pre-election statements being for more complex than necessary as employers will feel compelled to raise all potential factual and legal issues in order to preserve them.
The rule will also chill the free speech of employees, and sideline supervisors who would be effective communicators on behalf of the employer, as the question of who is a “supervisor” will not be decided until after the election. “Supervisors” under the NLRA are not entitled to vote in NLRB elections and can be required to campaign on behalf of the employer against a union. In contrast, bargaining unit employees can engage in free speech and participate in campaigning for and against the election. As the line between “supervisors” and employees will not be determined until after the election, an employer risks unfair labor practice charges and invalidation of election results should a “supervisor” who was directed to campaign against the union later be deemed an eligible voter, or should an employee who decided to campaign for or against the union or participated in in employee meetings later be deemed a supervisor. Traditionally, such decisions have been made before the election, with value placed upon allowing all parties, the union, the employer, and the employees to have a role in the exchange of information, and allowing the employees to make a free and informed decision after due consideration of the facts.
The new election rule highlights that employers must focus on employee relations 365 days a year, as they may not have the time and or ability to mount an effective election campaign under the restrictions and expedited election timeline adopted by the NLRB.