The National Labor Relations Board’s final rule governing the processing of representation petitions became effective today. The rule, which was published in December 2014, will dramatically shorten the time between the filing of a certification petition and the conduct of an NLRB election. 

The new Board procedures will boost union officials’ success in organizing campaigns at the expense of employees who now will have limited time to learn how a union in the workplace really will affect them. “Vote now, understand later” is how dissenting NLRB members Philip A. Miscimarra and Harry I. Johnson III appropriately summarized the rule in their dissent. They also instructed that the new rule’s “election now, hearing later” approach to NLRB procedure effectively denies important due process safeguards formerly available to the parties in petition cases.

The following summarizes the various ways the final rule changes or codifies the current practice. 

1. Electronic Filing.  Representation petitions may be filed with the Board electronically. The prior rules required hard-copy or facsimile filing.

2. Service.  Representation petitions (and related documents) must be served by the petitioner.  The Board’s prior rules did not require the petitioner to serve a copy of its petition on the other parties.

3. Showing of Interest.  At the same time the petition is filed with the Board, the petitioner must also provide evidence that employees support the petition (the “showing of interest”).  Petitioner must also provide the name and contact information of its representative.  The prior rules gave the petitioner 48 hours after the petition to file the showing of interest.

4. Mandatory Notice-Posting.  When a petition is filed, the employer must post and distribute to employees a Board notice about the petition and the potential for an election to follow.  Under prior practice, such notice was voluntary (and less detailed). 

5. Hearing in 8 Days.  The pre-election hearing will generally be scheduled to open 8 days from notice of the hearing.  This change imposes more uniformity across the regions and eliminates significant variations in the time between notice of hearing and the hearing itself, which variations reportedly ranged from 7 days to 10 days in some regions to as many as 13 to 15 days in other regions.

6. No Lengthy Continuances.  The pre-election hearing will continue from day to day until completed, absent extraordinary circumstances.  Prior practice did not address the standard for granting lengthy continuances.

7. Position Statement Required to Preserve Arguments.  Non-petitioning parties are required to state a position responding to the petition in writing 1 day before the pre-election hearing is set to open. The statement must identify the issues they wish to litigate before the election; litigation inconsistent with the statement will not be permitted. Timely amendments to the statement may be made on a showing of good cause. The employer must also provide a list of the names, shifts, work locations, and job classifications of the employees in the petitioned-for unit, and any other employees that it seeks to add to the unit. The statement must also identify the party’s representative for purposes of the proceeding.

   The new “pleading” requirements will likely weigh far more heavily on employers than on unions.  Prior practice requested parties to state positions and provide a list of employees and job classifications before the hearing, but did not require production of such information prior to the hearing.  Prior practice in some regions required parties to take positions on the issues orally at the hearing, but the practice was not uniform. 

8. Petitioner Response Required at Hearing.  At the start of the hearing, the petitioner is required to respond on the record to the issues raised by the other parties in their statements of position.  Litigation inconsistent with the response will not be permitted. If there is a dispute between the parties, the hearing officer has discretion to ask each party to describe what evidence it has in support of its position, i.e., make an offer of proof.

9. Limited Purpose of Hearing.  The purpose of the pre-election hearing, to determine whether there is a “question of representation,” is identified in the rule, which will permit the regional director to prevent litigation of various issues the Board believes to be a waste of resources.  Prior rules did not expressly state the purpose of the hearing. 

10. Evidence Limited to Purpose of Hearing.  Once the issues are presented, the regional director will decide which, if any, voter eligibility questions should be litigated before an election is held.  These decisions will be made bearing in mind the purpose of the hearing.  Generally, only evidence that is relevant to a question that will be decided may be introduced at the pre-election hearing.  Prior rules required, for example, litigation of voter eligibility issues that the regional director will now be able to exclude from the pre-hearing election. 

11. No Briefing.  The hearing will conclude with oral argument, and no written briefing will be permitted unless the regional director grants permission to file such a brief.  Prior rules permitted parties to file briefs.

12. No Transfer to Board.  The regional director must decide the matter, and may not sua sponte transfer it to the Board. The prior rule provided a transfer procedure.

13. Review Only for Compelling Reasons.  Absent waiver, a party may request Board review of action of a regional director delegated under Section 3(b) of the Act. Requests will only be granted for compelling reasons. Requests may be filed any time during the proceeding, or within 14 days after a final disposition of the case by the regional director. The prior rules included a variety of means for asking for Board review, including a “request for review” which only applied to the direction of election; other mechanisms for postelection review which varied depending upon the type of procedure chosen by the regional director or the form of election agreement; and a catchall “special permission to appeal.”  Review of the direction of the election had to be sought before the election. 

14. Limited Stays.  A request for review will not operate as a stay unless specifically ordered by the Board. Stays and/or requests for expedited consideration will only be granted when necessary. The prior rules included an automatic stay of the count of ballots (“impounding the ballots”) in any case where a request was either granted or pending before the Board at the time of the election. A stay should not be routine, but should be an extraordinary form of relief.

15. No Stays In Anticipation of Review Requests.  Elections will no longer be automatically stayed in anticipation of requests for review.  The prior rules generally required the election which followed a Decision and Direction of Election to be held between 25 and 30 days after the direction of election.  The purpose of this requirement was to permit requests for review to be ruled on by the Board in the interim.  This change accounts for much of the time that was available under the prior rule, and that will now be lost, for employees to learn and debate about the election issues. 

16. Election Details Set in Direction of Election.  The regional director will ordinarily specify in the direction of election the election details, such as the date, time, place, and type of election and the payroll period for eligibility.  Parties will take positions on these matters in writing in the statement of position and on the record before the close of the hearing. Under prior practice, election details were typically addressed after the direction of election was issued.

17. Elections on Earliest Date.  The long-standing instruction from the Casehandling Manual that the regional director will set the election for the earliest date practicable is codified.

18. Notice of Election Transmitted Earlier.  The regional director will ordinarily transmit the notice of election at the same time as the direction of election. Both may be transmitted electronically.  Previously, the notice was transmitted by mail after the direction of election.

19. Electronic Notices to Employees.  If the employer customarily communicates with its employees electronically, it must distribute all election notices to employees electronically, in addition to posting paper notices at the workplace.  Prior rules required only paper notices.

20. Excelsior Lists Required Earlier With Emails/Phones.  Within 2 business days of the direction of election, employers must electronically transmit to the other parties and the regional director a list of employees with contact information, including more modern forms of contact information such as personal email addresses and phone numbers if the employer has such contact information in its possession.  The list should also include shifts, job classifications, and work locations.  The list may only be used for certain purposes but the rule provides no specific remedy for any misuse of the list.  Prior caselaw gave employers 7 days to produce a list of names and home addresses and send it to the Board, which then served the list on the parties. 

21. Offers of Proof Required for Blocking Charges.  When a charge is filed alleging the commission of unfair labor practices that could compromise the fairness of the election, the regional director has discretion to delay (or “block”) the election until the issue can be resolved.  Any party seeking to block the election must simultaneously file an offer of proof and promptly make witnesses available.  This rule is intended to expedite investigation of and help weed out meritless or abusive blocking charges.

22. Offers of Proof for Obligations Due Earlier.  After the election, parties have 7 days to file both objections and offers of proof in support.  Objections, but not offers, must be served by the objector on other parties.  Prior rules gave 7 days for objections but 14 days for evidence in support of the objections. 

23. Post-Election Hearings Within 21 Days.  If necessary, a post-election hearing on challenges and/or objections will be scheduled to open 21 days after the tally of ballots or as soon as practicable thereafter.  Prior rules set no timeline for opening the hearing.

24. Final Decisions Required.  In every case, the regional director will be required to issue a final decision.  Where applicable, the regional director’s decision will be subject to requests for review under the procedure described in item 13 above.

25. Housekeeping Changes. Finally, the rule eliminates a number of redundancies and consolidates and reorganizes the regulations so that they may be more easily understood.