NLRB Issues 'Quickie' Election Rules

After an unsuccessful effort to implement new election rules in 2011, the NLRB has now re-issued election rules that would substantially speed up the existing union election process.

The National Labor Relations Board (NLRB or the Board) announced on December 12 that it has adopted new election rules (the Final Rule) that will substantially change—and speed up—the existing union election process.1 A Board majority adopted the Final Rule, with Chairman Mark Pearce, Member Kent Hirozawa, and Member Nancy Schiffer supporting the Final Rule, and with Members Philip Miscimarra and Harry Johnson dissenting. In what can be described as an avalanche of regulatory change, the Board's published Final Rule encompasses hundreds of pages of text and includes sweeping changes to long-established NLRB procedures for conducting representation elections.

The Final Rule will be printed in the December 15, 2014 edition of the Federal Register, and the corresponding changes are scheduled to take effect on April 14, 2015.

Key Changes in the Final Rule

The Final Rule adopts changes based on those that the Board advanced in February 2014 through its Notice of Proposed Rulemaking (NPRM), with some minor modifications.2 Notably, the 2014 NPRM almost entirely adopted the Board's June 2011 NPRM that sought a similar overhaul to the existing representation procedures.3 A two-member majority of the Board, in December 2011, adopted part of the 2011 NPRM, but those amendments never went into effect based on a federal court decision finding that the amendments were adopted without a valid Board quorum.4 Morgan Lewis represented the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace in this litigation.

Among the changes imposed by the Final Rule are the following:

All pre-election hearings must be set to begin eight days after a hearing notice issues. Employers must file a "Statement of Position" by noon on the day before the hearing begins. The Statement of Position must include a list of prospective voters and their names, job classifications, shifts, and work locations. Failure to include arguments or defenses in the filing may result in waiving that position going forward. Pre-election hearings will be drastically limited in scope, with regional directors and hearing officers having authority to exclude evidence or prevent pre-election litigation over voter eligibility and inclusion issues and to make such determinations based on statements of...