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Volume XI, Number 292


October 18, 2021

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The NLRB's New "Expedited" Election Rules Became Effective April 14, 2015— Expect a Major Uptick in Union Activity in Retail

The NLRB issued a 733-page final rule (“Final Rules”) this past December, which became effective on April 14, 2015, that amended the Board’s rules and procedures for union representation elections and are commonly referred to by employers and others as “the ambush election rules.” The Final Rules involve the most significant changes to the Board’s procedures in representation cases in more than 50 years and, together with the Board’s 2013 Specialty Healthcare decision, allow unions to petition for elections in so-called micro-units, consisting of small groups, sometimes smaller than a single department in a retail operation, and is expected to bring a major increase in union organizing in retail workplaces.

Because the Final Rules are designed to cut the period between the filing of a representation petition and the vote down to 21 days from the typical 40-45 days under the procedures that they replaced, retail and other employers will need to adjust their labor relations and human resources practices and strategies if they are to successfully maintain non-union status.

The Final Rules significantly change the Board’s long-standing union election procedures and eliminates many of the steps that employers have relied on to protect their rights and the rights of employees who may not want a union. Cumulatively, the Final Rules tilt the scales in labor’s favor by expediting the election process and cutting employer rights. Among the most important changes contained in the Final Rules are the following:

  • Representation hearings will generally take place within eight days of the filing of the petition.

  • Employers will have to provide the NLRB and any union that files a petition with a list of their employees’ names, job classifications, shifts, and work locations before the hearing. Under the old rules, employers did not have to provide employees’ names and addresses until after an election was agreed to by the parties or directed by the NLRB Regional Director after a hearing.

  • If an employer does not agree that the proposed bargaining unit named by the union in its petition is an appropriate one, the employer must also provide the petitioning union and the NLRB with the names, job titles, work locations, and shift information for all other employees whom it believes should be included in the unit. This information will allow the union to contact and begin its campaign among all of those employees as well.

  • One of the most significant requirements of the Final Rules is that an employer must submit a detailed Statement of Position (“SOP”) by noon the day before the before the hearing identifying any and all issues that it believes exist with respect to the petition—this will include issues concerning eligibility, inclusion or exclusion from the unit, supervisory and managerial status, and whether the unit that the union seeks is appropriate. If an issue is not raised in the SOP, the employer will be deemed to have waived all of its legal arguments that it did not raise. This means that it is critical that an employer carefully assess all of the facts and issues without delay.

  • Under the Final Rules, employers no longer have the legal right to a hearing and to present evidence on issues such as supervisory status, unit composition, and other issues. The Board’s Regional Office will generally deny employers the right to have important questions concerning eligibility and supervisory status resolved before an election.

  • Instead, an employer will need to be prepared to make an “offer of proof” at the hearing, describing in detail who its witnesses and what its documentary evidence would have been had it been allowed to call witnesses.

  • Employers no longer have the right to file post-hearing briefs on issues that are litigated at a representation hearing; instead, parties will be limited to arguing their positions in closing statements unless the Regional Director decides that briefs are necessary.

  • Under the old rules, parties generally had not less than eight days from the close of the hearing to submit a written brief applying the facts and the law and presenting their arguments verbally. Generally, when an employer ordered the transcript of the hearing and requested an extension, its time to submit a post-hearing brief would be extended by an additional two weeks.

  • Employers will no longer have the right to appeal a Regional Director’s decision to the Board in Washington before an election is conducted. Under the old rules, this appeal period typically meant that the election could not take place until at least 25 days after the Regional Director issued a Decision and Direction of Election.

  • The Final Rules expand the information that employers must provide about their employees to the union and the NLRB before the election. While the old rule required employers to supply employees’ names and home addresses, the Final Rules dictate that employers also provide unions with employees’ home telephone numbers and their personal email addresses. The list will now be due in two days rather than seven days and must be in a Word document.

  • The Board’s review of a Regional Director’s legal findings and conclusions is severely curtailed.

  • Perhaps most important, there will no longer be a minimum time period for the pre-election campaign because the Final Rules eliminate the minimum 25-day waiting period between a Direction of Election and the election. Rather, the Regional Director “shall schedule the election for the earliest date practicable”—which could be as early as 14 days after the petition is filed.

By and large, the Final Rules run roughshod over an employer’s right to dispute the propriety of the proposed bargaining unit before the election occurs and saddle the employer with new pre-election obligations. In effect, the NLRB has endeavored to speed up the election process so that an employer is unable to investigate and present a campaign against the union or fully consider the applicable legal questions. While the NLRB argues that the amendments “remove unnecessary barriers” to a union election, in reality, what was removed were those checks and balances preventing a union ambush and ensuring that an employer’s right under the National Labor Relations Act (‘NLRA” or “Act”) to express and communicate its position under Section 9(c), the “employer free speech” provision, has meaning. To put it bluntly, organized labor and the Board hope for, and the rest of us should expect, more union elections, in a shorter period of time, and more victories by unions trying to organize.

While the NLRB characterizes the amendments as necessary to “modernize the representation case process,” there is little in the Final Rules that merits such a claim. The amendments seem little more than window dressing to obscure the Board’s intended goal of helping unions win elections.

Expect Additional and Faster Elections and More Union Organizing

Until now, the NLRB’s goal has been to ensure that elections take place within 45 days of the filing of a representation petition. The Board’s goal in amending its rules is to shorten that period as much as possible without amendments to the Act, which would require Congressional action.

When measuring their likely impact, the changes in the election rules should not be viewed in isolation. Rather, they need to be looked at in light of the Board’s ruling in Specialty Healthcare and subsequent cases. In that line of cases, the Board made clear that it will find smaller, easier-to-organize units sought by unions to be appropriate and will direct elections accordingly, even though, under prior Board decisions, many such units would have been found to be inappropriate under the rule that units are not to be based on the extent of organizing.

The Final Rules should also be viewed in the context of the Board’s recent Purple Communications decision, which held that, if employees are allowed to use their employer’s email system for any non-work-related purpose, they will be presumptively allowed to use their employer’s email system for union organizing and other matters relating to terms and conditions of employment.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume V, Number 153

About this Author

Steven M. Swirsky labor employment lawyer health care and life sciences attorney
Member of the Firm

STEVEN M. SWIRSKY is a Member of the Firm in the Labor and Employment and Health Care and Life Sciences practices, in the firm's New York office. He regularly represents employers in a wide range of industries, including retail, health care, manufacturing, banking and financial services, manufacturing, transportation and distribution, electronics and publishing. He frequently advises and represents United States subsidiaries and branches of Asian, European and other foreign-based companies.

Mr. Swirsky:

  • Advises employers on a full range of labor and...