“It is a basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly,” Chairman Lauren McFerran said in a release.
The new rule, adopted Aug. 24, “returns the Board’s key election procedures to those put in place by a 2014 rule …and that was uniformly upheld by federal courts,” the release notes. In addition to making sure elections are conducted more quickly, pre-election hearings will start more promptly, important election information will be provided to workers more rapidly and pre- and post-election hearings will be more efficient, the NLRB release states. The rule becomes effective on Dec. 26.
Employers will now have two business days to let their employees know they’ve received a petition to hold a union election, HR Brew reports. Prior to the new rule, they had five business days. NLRB regional directors will no longer have to wait 20-business days to schedule a union election and can now schedule them at “the earliest date practicable.”
“By removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights,” McFerran said in the release.
Under President Donald Trump, who struck down so-called “quickie” election rules adopted by President Barack Obama’s administration, it took about six to seven weeks for most union elections to take place after a petition was filed, The National Law Review reports. With the return of quickie elections under the new rule, most union elections are likely take pace about 24 days after a petition is filed.
“As the timeframe for responding to a union representation petition will be significantly shorter, this places a premium on quickly identifying issues and effectively communicating with employees–but the employer community has shown this can be done in the shorter time period,” Mark Keenan, partner at Barnes & Thornburg, writes for the NLR.
A major change with the NLRB rule means that employers can no longer just refuse to acknowledge a union that claims to represent employees and force them to seek the NLRB’s approval to hold a secret-ballot election, Al Latham, partner, and Carlos Torrejon, of counsel, with Paul Hastings, write for JDSupra. “That has now changed,” Latham and Torrejon write. “When a union demands recognition, the employer must recognize the union based on a check of union authorization cards (“card-check”); or ‘promptly’ (generally within two weeks) petition the Board for an election.”
Keenan highlights two major takeaways from the rule. “More than ever, early detection of card signing and countering union messaging in that regard will be critical, and given the impact of potential unlawful conduct by managers or supervisors (i.e., a bargaining order recognizing the union), it’s more important than ever to make sure site management and front line supervisors know the ‘rules of the road’ regarding what they can and cannot do and say during a union election campaign,” he writes.