I thought that headline might grab your attention. Shocking as it may sound, that is one of the requirements of the NLRB’s new 700 page rule on representation elections. The rule is published in the Federal Register today, and takes effect on April 14, 2015.
The rule was first issued in 2011 but later was invalidated by a federal court because the Board lacked a quorum when it was enacted. Chamber of Commerce of the U.S. v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012). The Board issued a more extensive proposal in early 2014, which has now been finalized in essentially the same form as the draft proposal.
The most talked about aspect of the new rules is the compressed time frame for union elections, which has been shortened from 42 days to about 3 weeks. This changes has resulted in the rule being called the “quickie election” rule, and its likely effect is to give unions an advantage in organizing because an employer will have far less time to prepare and conduct a counter-campaign.
There are a number of other changes to the representation campaign process set out in the new rules, including:
- A pre-election hearing must be held within 7 days of filing of petition;
- The employer must raise all pre-election issues in a statement of position filed at the hearing or else the issues are waived;
- Issues of voter eligibility (i.e., is an employee a supervisor; are they confidential; are they seasonal) are deferred to after the election unless they impact more than 20% of the voters;
- The right to file a post-hearing brief has been eliminated;
- The employer must provide voter email addresses and phone numbers within two days of the direction of the election; and
- Appeals to NLRB for review can only be taken post-election.
In addition to the expedited time frame for elections, the rule’s new requirement that employers disclose employees personal email addresses and phone numbers to union organizers has drawn a great deal of criticism. Under current law, an employer must only disclose an eligible voter’s home address (which has made many an employee uncomfortable over the years). Now, recognizing that the days of union organizers knocking on a door have been replaced with elaborate electronic campaigns, the NLRB is giving unions a means to get digital access to voters – regardless of whether the voter is agreeable to granting that access. There is no opt-out provision in the rules, so employees who happen to find themselves in a workplace undergoing an organizational campaign may now also find themselves permanently placed on union sponsored and supported solicitation lists.
While the rules are scheduled to take effect on April 14th, it is quite possible they will be subject to further legal challenges. Nevertheless, employers should be preparing for these new changes to take effect by the time the spring flowers are back in bloom.