NLRB Restores “Quickie Election” Rules for Union Representation

The National Labor Relations Board (NLRB) has issued a final rule that will restore the “quickie election” rules for union representation that were first implemented in 2014 and then partially reversed in 2019. The new rule will take effect on December 26, 2023, and will significantly
reduce the time between the filing of a petition and the holding of an election.

The NLRB is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages, benefits and working conditions. The NLRB also conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.

The NLRB’s stated objective behind the rules is to simplify and expedite the union election process by eliminating unnecessary delays and litigation. The new rule will return the NLRB’s key election procedures to those put inplace by the 2014 rule, which was adopted using a notice-and-comment
process and was upheld by federal courts1.

Some of the main changes that the new rule will bring are:

• Allowing pre-election hearings to begin more quickly, within eight days of the petition filing, instead of 14 days under the 2019 rule.
• Ensuring that important election information, such as the notice of petition and the notice of election, is disseminated to employees more quickly, within two days of the petition filing and two days of the direction of election, respectively, instead of five days under the 2019 rule.
• Making pre- and post-election hearings more efficient, by limiting the scope of issues that can be litigated before an election, by requiring parties to submit their evidence and arguments in advance of the hearing, and by allowing the regional director to decide whether a hearing is necessary at all.
• Ensuring that elections are held more quickly, by removing the mandatory 20-day waiting period between the direction of election and the election itself, and by allowing the regional director to set the election date based on the circumstances of each case.

The new rule was approved by Board Chairman Lauren McFerran and Members Gwynne A. Wilcox and David M. Prouty. Board Member Marvin E. Kaplan dissented, arguing that the rule will deprive employers and employees of due process and fair representation.

The new rule is expected to have a significant impact on the unionization landscape, as it will make it easier and faster for unions to organize workers and win elections. According
to the NLRB’s statistics, the median number of days from petition to election was 23 days under the 2014 rule, compared to 38 days under the 2019 rule. Moreover, the union win rate was 69.4% under the 2014 rule, compared to 66.7% under the 2019 rule.

Employers who wish to remain union-free should be aware of the new rule and prepare accordingly. Some of the steps that employers can take to prevent or respond to union organizing efforts are:

• Maintaining positive employee relations and addressing employee concerns promptly and effectively.
• Educating managers and supervisors on how to recognize and respond to union activity and how to communicate the benefits of a direct relationship with employees.
• Developing and implementing a comprehensive union avoidance strategy and policy, including a rapid response team and a communication plan.
• Reviewing and updating employee handbooks, policies and practices to ensure compliance with the National Labor Relations Act and other applicable laws.
• Conducting regular audits and assessments of the workforce and the potential bargaining units that unions may target.
• Seeking legal counsel and guidance from experienced labor and employment attorneys in the event of a union petition or campaign.

Additionally, employers should be aware of the following information regarding the notice of a petition and the response deadline:

• An employer can receive notice of a petition to unionize being signed by 50% plus one of the employees in the proposed bargaining unit by mail or email from the NLRB.
• The employer must respond to the notice within 14 days by filing a Statement of Position form with the NLRB and serving it on the petitioner and any other parties.
• The employer’s Statement of Position must include the employer’s position on the appropriateness of the proposed bargaining unit, the existence of any contract bars, the eligibility or inclusion of any individuals, and any other issues that may affect the conduct or outcome of the election.
• If the employer fails to respond within 14 days, the employer will be precluded from raising any issues that were not timely raised in the Statement of Position, and the NLRB will proceed with the election based on the information provided by the petitioner.
• The employer should be especially vigilant during the holiday season, as the notice of a petition may arrive when the employer is on vacation or not checking the mail or email regularly. The employer should designate a responsible person to monitor the mail and email and alert the employer of any notices from the NLRB. The employer should also consult with an attorney as soon as possible to prepare a response and a strategy for the election.

This is America, where workers have the right to unionize and bargain collectively for their wages and benefits. Unionization can empower workers to have a voice in their workplace and improve their working conditions. However, it is also important for employers to be fully aware of what’s coming down the road. Unionization can have significant implications for the cost, flexibility, and productivity of their business. Employers should be prepared to deal with the legal, financial, and operational challenges that may arise from union activities.