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New Labor Board May Kill “Quickie Election” Rule; Requests Public RFI

The NLRB announced yesterday, a Request for Information (“RFI”) on the Board’s 2014 “Quickie Election” representation regulations (at 29 CFR parts 101 and 102). The RFI seeks input on the amendments to representation case procedures, which drastically changed the process for NLRB conducted elections in which employees vote on whether they want to be represented by a union. The RFI was approved by Board Chairman Philip A. Miscimarra and Board Members Marvin E. Kaplan and William J. Emanuel. Board Members Mark Gaston Pearce and Lauren McFerran dissented.

The amendments, which took effect on April 14, 2015, significantly tilted the NLRB’s election procedures in favor of unions by dramatically speeding up the timeframe between the filing of a petition for an election to the holding of an election from an average of approximately six weeks to an average of 23 days. Under the amendments, it is easier for unions to organize unrepresented employees because a shorter period of time between a union’s filing of a representation petition and the holding of an election makes it harder for employers to present their arguments against union representation and lawfully persuade employees that a union may not be in their best interests. Some of the other provisions of the Board’s amendments included:

  • Requiring employers to provide union organizers with voluminous amounts of information regarding potential voters, including their names, home addresses, phone numbers, email addresses, work locations, shifts and job classifications, and thus further exposing employees to possible harassment and intimidation by union organizers;
  • Submission of an onerous “statement of position” addressing all potential bargaining unit issues the employer intends to raise or risk waiver of the right to litigate those issues at the pre-election hearing;
  • Requiring pre-election hearings be held within seven days of the filing of the petition, giving employers little time to find competent counsel and understand the complexities of the laws governing union representation elections, investigate potential bargaining unit issues, and make critical strategy decisions concerning whether to enter into a stipulation election agreement with a union or raise potential challenges to the proposed bargaining unit;
  • Deferring critical election issues, such as supervisory status issues, until after the election is held, resulting in substantial liability risks to employers (who will be found liable for the acts and omissions of statutory supervisors and who’s imputed liability may be grounds to overturn the results of an election in favor of a union).

The Board’s amendments substantially reduced the opportunities for employers to communicate with their employees about the union at issue and unionization generally, and thus undermined employers’ free speech rights. The Board’s rules also placed substantial pressure on employers to make critical decisions and produce voluminous information within extremely short timelines or risk waiver, thus jeopardizing employers’ due process rights. For more information on the “quickie election rule,” see our prior article here.

The Board’s RFI asks for public input on the following three questions:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

The Board will allow interested parties to submit comments on the above questions from December 13, 2017 through February 12, 2018.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

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Garen E. Dodge, Sheppard Mullin, Non Compete Agreements Lawyer, national origin discrimination Attorney
Partner

Garen Dodge is a partner in the Labor and Employment Practice Group in the firm's Washington D.C. office.

Mr. Dodge’s diverse practice covers the spectrum of labor and employment litigation. His recent victories include serving as lead counsel in a jury trial alleging defamation in Fairfax, Virginia Circuit Court, obtaining an injunction in DC federal court in a non-compete case, and prevailing in a five day arbitration involving allegations of age and national origin discrimination. Throughout his career, he has served as counsel of record in seminal U.S. Supreme Court and appellate cases as Amicus Curiae. Mr. Dodge advises clients on issues involving privacy, discrimination, background checks, harassment, wage and hour, and occupational safety and health. He assists companies in establishing workplace programs, and trains supervisors and employees on effective personnel policies. He represents clients before Congress and key federal agencies on labor and employment issues, and has testified before agencies such as the U.S. Commission on Civil Rights.

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