United States: NLRB Issues Final Rule Speeding Up Time Frame For Union Elections

On December 12, 2014, the National Labor Relations Board ("NLRB" or the "Board") issued its long-awaited final rule amending its representation case procedures to shorten the time frame for holding union-representation elections and to require employers to provide more information about employees to unions. The final rule is the culmination of a process that began in 2011 when the Board first proposed wide-sweeping changes to the procedure for conducting union elections. The 2011 proposal resulted in an abbreviated final rule that was derailed by litigation over procedural defects in the rule's adoption. The effort to revise the representation case procedures was resurrected after new members were confirmed to the Board, and the final rule now adopted more closely resembles the Board's broad 2011 original proposal than it does the abbreviated rule that was unsuccessfully adopted three years ago. This final rule comes after two rounds of public comments and hearings and is best characterized as the work of the current pro-labor majority of the Board. The complete comments to the final rule, which include a dissent of over 100 pages by the two Republican members of the Board, are over 700 pages in length.

The Board majority characterizes the new rule as "modernizing and streamlining" the representation case process. The dissent and critics from the business community claim that the rule is intended to greatly reduce the time period from the filing of a petition for election until the election itself, which is seen as giving unions a distinct advantage in elections. Other changes in the rule require the employer to provide more information to employees and the union, which is also seen as helping unions win more elections.

Key Elements

The key elements of the final rule are as follows:

  • Unions may file election petitions electronically and must simultaneously serve a copy of the petition on the employer. Unlike the old rule, which required unions to produce a "showing of interest," usually in the form of signed union authorization cards, within two days of filing the petition, the new rule requires that the showing of interest be filed along with the petition.
  • The new rule generally requires that the NLRB's regional director schedule a hearing on the petition for a date eight days after notice is given. Given the electronic filing option, hearings could be held as soon as eight days from the actual filing of the petition.
  • The Board will provide employers with a new detailed election notice that must be posted and distributed electronically to employees immediately upon receipt. Under the old rules, the Board would provide an initial notice to employers, but posting was not mandatory.
  • Employers will be required to file with the Board a statement of position by noon on the day before the hearing, setting forth the employer's position on any issues related to the petition itself, the voting unit, and any other legal concern. In other words, employers must be prepared to file a complete statement of their legal position in response to a petition in as few as seven days from receiving notice of the petition.
  • Along with the statement of position, employers will now be required to provide the NLRB and the union with an alphabetized list, in electronic format if possible, of employees in the proposed voting unit, showing each employee's job classification, shift, and work location. This is intended to allow the Board to resolve any unit issues more efficiently, but obviously also provides the union with a tremendous advantage in developing intelligence about the unit for its campaign.
  • In one of the most controversial aspects of the new rule, most issues related to unit composition will not be litigated at the hearing, but instead will be deferred until after the election. Only when the issues raised could have a "substantial impact" on the election results will the issue be litigated at the hearing. The Board majority claims this change will avoid unnecessary delay over issues that normally do not affect the outcome of an election. The dissent points out that initial unit composition issues are critical to controlling parties' conduct during a campaign, such as whether to treat an employee as a supervisor or voting unit member. The dissent also argues the new rule will lead to more protracted litigation after elections.
  • Under the new rule, any issues that are litigated at the pre-election hearing must, in most cases, be addressed through closing arguments at the conclusion of the hearing, rather than through written post-hearing briefs. While the majority views this as being efficient, the result will be to shorten the election process by at least one week.
  • Under the current rule, there is an automatic stay of 25 – 30 days after the regional director directs an election to allow parties to file requests for review with the NLRB in Washington. There is no mandatory time frame in the new rules for the scheduling of the election after the regional director's decision, but the rules direct that the election is to be scheduled as soon as possible. The dissent argues this could be as few as seven days from the direction of the election.
  • Under the old rules, employers had seven days from the date of a direction of election or an election agreement to file the Excelsior list, a list of names and home addresses of employees in the voting unit. Under the new rules, this list must also include telephone numbers and email addresses, must be served on the union as well as the Board, and must be filed within two days of the direction of election or election agreement. In addition to taking five more days out of the previous typical election time frame, this rule will provide the union with much more information to facilitate its communication with employees.

The various changes to election procedures contained in the new rule appear to allow for elections within 21 days of a petition being filed and may even allow for an election within 14 days. This is a tremendous change from the current procedures by which, on average, elections are held within 38 days of a petition being filed. While the new rule does not set a specific schedule for the holding of elections, a clear purpose behind the rules is to shorten election campaign periods significantly. As the dissent argues at great length, this reduced campaign period will greatly impact employers' opportunities to communicate with their employees about unionization, which will likely lead to significantly more union victories.

Practical Implications

The new rule is scheduled to take effect on April 14, 2015. There will likely be legal challenges filed in an effort to stop the new rule, but it is uncertain whether any such challenge will succeed. Employers need to assume the new rule will take effect and make plans to deal with this new reality of union election procedures. In-house counsel and human resources professionals should ensure that top-level management is aware of the new rule and the effect it will have on the timing of a union election once a representation petition has been filed. Because they will likely have less time to communicate their message regarding unionization after a petition is filed under the new rule, employers should rethink their communication strategy up front. It may be wise to include information on unionization in orientation presentations to new hires and in periodic communications with existing employees and to develop in advance a post-petition communication plan that takes into account the shortened time frame leading up to a union election. Employers should also assess in advance their legal positions regarding potential bargaining units and should train supervisors and managers about what to expect and do if a union organizing campaign occurs. The attorneys on Kilpatrick Townsend's Labor & Employment Team are ready to assist employers in meeting the challenges posed by the NLRB's new rule.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Russell A. Jones
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions