On the heels of yesterday’s Purple Communications, Inc. decision, the National Labor Relations Board today has taken more significant measures to facilitate union organizing.  The Board today has announced issuance of its final rule overhauling representation election procedures to expedite union representation elections.

The Board rule contains many of the same controversial measures published in the Board’s earlier attempt to overhaul these procedures, initially published in the Federal Register on Thursday, December 22, 2011.  That rule went into effect on April 30, 2012, but was invalidated by the courts just weeks later because it was promulgated without a proper quorum of three Board Members.  The Board subsequently withdrew the rule, but in February of this year, with a full quorum of confirmed Members, it reissued a Notice of Proposed Rulemaking identical to its earlier proposal.

The new final rule, however, includes even more of the Board’s proposals than the 2011 final rule. Accordingly, it appears the Board ignored not only most of the critical comments among the 65,000 filed in 2011, but also all of the arguments from the subsequent litigation and the additional stakeholder comments filed in response to the more recent NPRM.

The final rule:

  • Provides for electronic filing and transmission of election petitions and other documents;
  • Requires the employer to provide the names and information about employees immediately upon the filing of a petition;
  • Requires the employer to declare all legal positions within days of the petition filing, under threat of waiver;
  • Drastically limits preliminary litigation of issues relevant to the election;
  • Eliminates the ability of the parties to seek pre-election review of erroneous Regional Office decisions; and
  • Requires that additional contact information (personal telephone numbers and email addresses) be included in voter lists, to the extent that information is available to the employer.

The rule will be published in the Federal Register on December 15, and will take effect on April 14, 2015 — but there will be significant litigation challenging the rules well in advance of that time.  The implementation of these rules will have a profound impact on the way employers respond to union organizing attempts.  Unions have undoubtedly been waiting for this moment, certain to usher in an increased wave of organizing efforts.  We are in the process of reviewing the lengthy final rule and related resources, and will follow up with more detailed analysis as appropriate.

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