New NLRB Election Rules Become Effective April 14, 2015

On April 14, 2015, the National Labor Relations Board’s (NLRB) new election rules will become effective. As we explained in our December 19, 2014 alert, the new rules will expedite the time between when a petition is filed to the election from the current timeframe of 42 days to approximately 21 days. Also, the rules will postpone litigation over most issues regarding voter eligibility, causing uncertainty at the time of the election over who might be in the bargaining unit.

On April 6, 2015, the NLRB’s General Counsel issued Memorandum GC-15-06, which describes how the GC will implement the new rules. Here are some of the highlights:

• A pre-election hearing generally will be set on the eighth day after the employer receives notice of the election petition.
• The pre-election hearing may be postponed for up to two business days based on a showing of special circumstances and for more than two business days based on a showing of exceptional circumstances. In other words, postponements will not be easily obtained;
• The employer must post a notice of the election within two business days after it receives notice of the petition;
• The employer must file a position statement by noon on the business day before the pre-election hearing. The employer must raise all issues it wishes to contest or they generally will be waived. Also, if the employer contends that other employees should be in the unit, it must include information regarding those employees or that argument will be waived;
• The position statement due date may be postponed for up to two business days based on a showing of special circumstances and for more than two business days based on a showing of exceptional circumstances. In other words, as with the hearing date, postponements will not be easily obtained;
• At the conclusion of the hearing the employer will be given an opportunity to present an oral argument; however, post-hearing briefs generally will not be accepted;
• The region must use its best efforts to expedite issuing the decision as soon as possible following the pre-election hearing; and
• The election will occur as soon as possible starting 10 days after the region issues its decision directly an election.

In short, once a union files a petition for an election, the process will move very quickly, and the employer must be prepared to act or it will lose important rights. Therefore, to be adequately prepared, employers should consider taking the following proactive steps now:

• Conduct a bargaining unit analysis in light of recent NLRB decisions on possible "micro-units;"
• Assess the supervisory status of potential “supervisors” within the meaning of the National Labor Relations Act;
• Develop a “Litigation Response Plan” so as to be prepared to file the required position statement on unit and supervisory issues; 
• Conduct a Human Resources vulnerability assessment to identify workplace issues and develop a plan to address identified concerns;
• Conduct supervisory training and assemble a communications team; and
• Prepare a “Break the Glass” draft union campaign kit.

By taking the above steps, employers will be ready to face the new, expedited election process, should that become necessary.