by: Price Barker, Michael D. Lowe, & Brian R. Carnie

The National Labor Relations Board (a pro-union agency) is attempting to administratively achieve changes that the Obama administration could not obtain legislatively. One such change is the NLRB's "quickie election" rule, which the Board adopted and finalized on December 22, 2011. This new rule takes effect on April 30, 2012.

Today, union election campaigns typically last about 40-48 days after the petition is filed unless there are disputes about the appropriateness of the petitioned-for bargaining unit and/or eligibility of voters (which is often the case), in which case employers have even more time to campaign. However, the NLRB's new final rule eliminates some pre-election rights of employers in order to shorten the time before a representation election takes place. Some of the significant changes:

• The final rule gives hearing officers authority to limit the pre-election hearing to matters only concerning: (1) whether the employer's operation affect interstate commerce; (2) the existence of a "bona fide question" concerning representation in a unit of employees appropriate for collective bargaining; or (3) whether there is sufficient evidence of employee interest in the election. In commentary to the rule, the NLRB states that the pre-election hearing need not decide individual eligibility and unit inclusion questions and gives hearing officers authority to exclude introduction of evidence concerning such disputes at the pre-election stage. Questions concerning whether an employee is a supervisor or whether the employee falls within the term used to describe the proposed unit are among the most litigated pre-election issues under existing law. Starting next April, such issues will most likely be deferred until after the election, meaning that the election process will be expedited in many situations and employers may not know which employees are actually eligible to vote until after the election takes place.
• The final rule prohibits parties from filing briefs after the pre-election hearing unless the hearing officer gives "special permission" for briefs.
• The Board has eliminated the possibility of appealing pre-election matters. If the employer wants to review a Regional Director's decision and direction of an election after the pre-election hearing, the employer must now wait until after the election to do so.
• The final rule eliminates the 25-day waiting period following issuance of a decision and direction of election and the election. Currently, the regional director cannot schedule an election sooner than 25 days after the direction of an election so that Board has an opportunity to rule on any requests for review that may be filed. Given that pre-election requests for review will no longer be permitted, the NLRB eliminated the 25-day waiting period.

The practical consequence of these changes is that the time between the filing of the election petition and the election will be greatly reduced. In other words, employers will soon have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election.

Unions are making a big push to increase their membership roles. A passive employer may not have an adequate opportunity to turn support away from a union through pre-election campaign once the "quickie election" rule goes into effect. It is now more important than ever for companies to consider a comprehensive preventative labor relations program to help the company remain union-free.

The labor law environment is shifting, placing the momentum in favor of union organizing. Proposed changes to the election and campaign process, as well as new technological advances, demand new strategies to effectively counter them. Changes that the company undertakes now, before an organizing campaign gets underway, will likely pay huge dividends in helping the company stay union-free.

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