NLRB Adopts Final Rule to Amend Its Representation-Case Procedures

A divided National Labor Relations Board (“NLRB”) issued a final rule amending its representation-case procedures. The NLRB stated that the final rule is “designed to remove unnecessary barriers to the fair and expeditious resolution of representation questions.” The rule will be published in the Federal Register on December 15, 2014, and will take effect on April 14, 2015. Board Chairman Mark Gaston Pearce and Board Members Kent Y. Hirozawa and Nancy Schiffer approved the final rule, while Board Members Philip A. Miscimarra and Harry I. Johnson, III dissented. The NLRB previously proposed similar changes to its representation-case procedures in 2011, that were struck down after the U.S. Court of Appeals for the D.C. Circuit found that the NLRB lacked the necessary quorum to issue the proposed rule.

There are various NLRB procedures that are followed to determine if a representation election should be conducted. The final rule changes many of the procedures relating to representation petitions and elections. Some of the changes in the final rule include:

Elections will no longer be automatically stayed for 25-30 days (resulting in less time for employers to conduct an election campaign);
The pre-election hearing is now limited to litigating only those issues that are necessary in order to determine whether an election is appropriate and other issues will be deferred to post-election;
The voter list provided by the employer must include employees’ telephone numbers and e-mail addresses (if available) in addition to employees’ names and home addresses;
Election petitions, election notices, and voter lists may now be filed electronically, and NLRB regional offices may deliver notices and documents electronically;
Parties and the potential voters in a representation election will receive more detailed information of the procedures and voting process;
There will be set time frames for when a pre- or post-election hearing will be held;
There is now a mechanism to require the non-petitioning parties to identify any issues they have with the representation position and to require a response by the petitioning party;
Employers must provide a list of prospective voters to the NLRB regional office and the other parties before the pre-election hearing; and
Parties may wait to decide whether they will file a request for review of the NLRB regional director’s pre-election decision until after the election without waiving the right to seek review of that decision.

The NLRB prepared a chart comparing the current representation-case procedures with the new procedures put in place by the final rule. That comparison chart may be found here.

NLRB Chairman Mark Gaston Pearce said in a statement, “I am heartened that the board has chosen to enact amendments that will modernize the representation case process. Simplifying and streamlining the process will result in improvements for all parties. With these changes, the board strives to ensure that its representation process remains a model of fairness and efficiency for all.” However, the response from business groups has been far less positive. For example, the President of the National Association of Manufacturers and the Vice President of the National Retail Federation stated that their respective organizations are considering a legal challenge to the final rule. Jay Timmons, the President of the National Association of Manufacturers, released a written statement that, “It’s clear the Administration has an aggressive agenda to uproot longstanding and effective labor policy. . . . Shortening the time frame before an election robs employees of the ability to gather the facts they need to make an important and informed decision like whether or not to join a union and denies employers adequate time to prepare.

The NLRB’s website includes a fact sheet on the final rule, with links to the final rule in the Federal Register, the dissenting opinions, and the comparison table.

If you have any questions about any of the issues discussed in this alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.