In April 2015, the National Labor Relations Board’s (NLRB) implemented “quickie election” rules that sped up union elections while also requiring employers to provide unions with employee personal email addresses and telephone numbers. In practice, the quickie election rules required that disputes over voter eligibility and scope of the voting unit be deferred until after the election was conducted, thereby obviated the need for a pre-election hearing. The only issues that could be addressed during a pre-election hearing were those necessary to determining the necessity of an election. As a result of the quickie election rules, a process that traditionally took approximately six weeks could be concluded in less than three – a dramatically shorter timeframe. The rules significantly disadvantaged employees, leaving them with less time to make an informed decision about potential membership. The reduced timeline and added requirements also put undue strain on employers, giving employers less time to educate employees and forcing them to be proactive about potential organizing campaigns.
In December 2019, however, the Republican-controlled Board announced it would relax the quickie election rules. NLRB Chairman John Ring described the new rules, which become effective on April 16, 2020, as “common sense changes to ensure expeditious elections that are fair and efficient.” Importantly, the new rules reverse the NLRB’s practice of resolving questions of representation, unit scope, and voter eligibility after an election is scheduled, allowing a return to the more relaxed timeframe afforded by the rules prior to implementation of quickie elections.
The new rules are significantly more employer-friendly, and, as promised, more prolonged than the 2015 rules. In short, the NLRB has effectively taken the “quickie” out of the quickie election rules, restoring up to six weeks to have an election. Among the changes are enlarged time frames in which to respond to petitions for election and to file mandatory voter lists. For example, under the quickie election rules, once a petition was filed, employers had to post and distribute a Notice of Petition for Election within two business days; the new rule enlarges this time period to five business days. Parties will also have more time before the pre-election hearing (up to 10 days), along with additional time to file statements of position. In addition, parties have their rights to file post-hearing briefs reinstated, which the quickie election rules rule largely prohibited. Importantly the new rules provide that no election may occur prior to 20 days following a Decision and Direction of Election (“DDE”). This means that should an employer go to a pre-election hearing and file briefs, it is likely that no election will occur before 35-40 days have elapsed.
In all, the new rules will provide relief to employers feeling the squeeze of quickie elections, allowing additional time to educate employees on union membership and, more importantly, to litigate issues with the proposed bargaining unit. Employers, however, should not let their guards down and should continue to train supervisors on union activity. Properly trained supervisors are in the best position to recognize early warning signs of possible union activity and warn employers of any surprises.
Written by: Ashby Angell is an associate in the Louisville office. Her practice is focused exclusively on labor and employment law across various industries including manufacturing, healthcare, and media. Ashby represents employers in a variety of legal issues including discrimination, sexual harassment, and non-compete agreements. She also has experience handling traditional labor matters, including labor arbitrations and union avoidance training. Prior to joining the firm, Ashby worked for a small civil litigation firm in Louisville, where she represented clients in a variety of tort claims.
Ashby graduated from the Louis D. Brandeis School of Law at the University of Louisville. While in law school, she served as a member of the Journal of Law and Education.