Late last week, the National Labor Relations Board (the “Board”) issued a long-anticipated final rule implementing dramatic changes to the procedures for union representation elections. The so-called “quickie election” or “ambush election” procedures, which were scuttled in years past by a federal judge, are being hailed by unions as a major victory that will make it easier to win representation elections.
The announcement makes three significant adjustments to election procedure. First, the time from the filing of an election petition to the date of the election will be truncated by 75%, from an average of 39 days to as few as 10. This shortened time frame will allow for only a narrow window of employer campaigning before an election takes place. Many employers will be caught flat-footed and be unable to effectively present their side of the argument.
Second, employers who attempt to assert rights at a pre-election hearing will be forced to provide two separate employee lists. First, the employer will be required to hand over the names of all employees who make up the union’s preferred unit – even though the employer is contesting the validity of that unit. Second, the employer must also provide the names of every employee in the unit the employer deems appropriate. Then, just two days after the hearing officer resolves any challenge to the proposed unit, the employer must electronically send the names, addresses, telephone numbers, email addresses, work locations, shifts, and job classes for the appropriate employees to the union.
Third, most litigation about the appropriate group of voting employees will now be tabled until after the election has already taken place. If the group of employees who the employer contends should not be in the unit make up less than 20% of the proposed unit, the employer will have no right at all to challenge their inclusion until the election has already taken place.
These changes go into effect on April 14, 2015. Employers should take the opportunity now to engage in preemptive strategizing, and arrange for contingency plans about how to react in the event a group of employees files an election certificate. Given the new, seemingly impossibly short timelines that the Board has mandated, advance planning can give employers a much-needed jump-start on the process.