NLRB Issues its "Ambush" Election Rule

As expected, the National Labor Relations Board released its much-anticipated final rule amending union representation and election procedures.  The rule is scheduled to be formally published in the Federal Register on December 15, and therefore take effect on April 14, 2015.

Among other changes, the rule will: 

  • allow electronic filing and transmission of election petitions
  • require additional contact information – including email addresses and phone numbers –  to be included in voter lists
  • require that such voter lists be provided within two business days of the regional director’s approval of an election agreement or decision directing an election
  • direct the employer to provide a list of prospective voters with their job classifications, shifts and work locations to the NLRB’s regional office and the union prior to the pre-election hearing
  • delay determinations of voter eligibility issues until after the election is held
  • require parties to identify all disputed issues in the Statement of Position prior to the pre-election hearing
  • set a pre-election hearing eight days after a hearing notice is served and a post-election hearing 14 days after the filing of objections
  • eliminate the 25-30 day stay of an election after one is ordered. 

The final rule appears substantively similar to the proposed rule that was re-issued in February 2014, and triggered nearly 75,000 comments, although the Board majority highlights ways in which the two versions differ. The Board held two days of hearings on this proposal, during which dozens of speakers voiced concern over many of the rule's provisions. 

In their lengthy and vehement dissent, Members Philip A. Miscimarra and Harry I. Johnson III assert: 

The Final Rule adopts almost all of what was set forth in the February 2014 Proposed Rule, which in turn was nearly identical to what the Board originally proposed in 2011. There are minor changes, but the Rule’s primary purpose and effect remain the same: initial union representation elections must occur as soon as possible. The Rule’s defects also remain the same, uncured by the majority’s lengthy discussion, which reflects an awareness of criticisms that are far too often summarily rejected. 

Other excerpts from their dissent discuss specific problems with the new rule: 

  • The Rule would impermissibly conduct expedited representation elections before any hearing addresses fundamental questions like who is eligible to vote, thereby resulting in an “election now, hearing later.”
  • The Rule improperly shortens the time needed for employees to understand relevant issues, compelling them to “vote now, understand later.”
  • By requiring elections to occur as quickly as possible, the Rule curtails the right of employers, unions and employees to engage in protected speech.
  • The Rule greatly accelerates all deadlines associated with representation elections.
  • The majority not only rewrites nearly all procedures governing elections, it eliminates any mandatory role for Board members in resolving post-election questions that arise from the Rule (relegating this to regional directors and to the courts, with only discretionary and post-election review by the Board).
  • The Rule imposes new mandatory disclosure requirements obligating employers to disclose personal contact information of unit employees, including all personal email addresses and cell phone numbers in the employer’s possession. 

Notably, the dissenting members explain that the position taken by other Board members with respect to electronic communications is at odds with their position in the recently issued Purple Communications decision: 

In the Final Rule, our colleagues maintain that personal cell phone communications and texting are essential means by which employees engage in organizing and concerted activity, which is the reason our colleagues expand the Excelsior disclosure requirements to require employers to disseminate available personal telephone numbers and email addresses. For example, our colleagues call personal phones “a universal point of contact today” and cite the “prevalence of cell phones, which are typically carried with adults on their person whether at home, at work or around town,” which “now allows callers’ messages to reliably reach their recipients” with “shocking” reliability and speed, “enhanced through text messaging, * * * the preferred mode of communication for many young people.” Yet our colleagues have taken precisely the opposite view in Purple Communications, 361 NLRB No. 126 (2014), where the majority insists that “social media, texting, and personal email accounts” are not even “germane” because they “simply do not serve to facilitate communication among members of a particular workforce” Both justifications cannot be correct. Given the Board majority’s holding in Purple Communications . . . the Final Rule’s justification for requiring the disclosure of personal employee phone numbers and personal email addresses cannot be considered rational. 

The impact of the Purple Communications decision – in which the Board held that employees have a presumptive right to use an employer's email for Section 7 activity under certain circumstances – factors into another portion of the new final rule. The Board majority has taken the position that it should, "when practicable, accept electronic signatures to support a showing of interest. Our current rules do not prohibit the acceptance of electronic signatures, and so no change in our rules is necessary to effectuate this policy conclusion." The Board directs the General Counsel to "determine whether, when, and how electronic signatures can practicably be accepted and shall issue guidance on the matter." The practical effect of this is that employees will undoubtedly start using an employer's email system to solicit electronic signatures. 

A more detailed analysis of this rule and its significant implications can be found here.  In addition, the Board has published a fact sheet on the rule.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.