As anticipated, the National Labor Relations Board today made public its final revised election rules. The new rules will become effective 120 days following their publication in the Federal Register. The publication date is scheduled to be Monday, December 15, 2014, one day before the expiration of the term of Member Schiffer.
There are really no major surprises in how the final rules came out. Among the key provisions are:
- All documents attendant to an election may now be filed electronically.
- The election voter list (“Excelsior List”) must now include – in addition to names and home addresses of the employees – their personal phone numbers and personal email addresses (if available to the employer), and their work locations, shifts and job classifications.
- Hearings to be scheduled 8 days following the filing of the election petition, with discretion in the regional director to exceed that time frame in “complex” cases, or if the requesting party can show “special circumstances” (for two additional days) or “extraordinary circumstances” (for more than two days).
- The non-petitioning party (generally the employer) must file a statement of position by noon on the seventh day after the filing of a petition, with allowances for changes if the hearing is not scheduled for the 8th day following the petition.
- Eliminates post-hearing review as a matter of right.
- Elimination of the 25 day “waiting period” before scheduling an election following the issuance of the decision (which had customarily been observed by regional directors following the hearing in contemplation of pre-election discretionary review).
The final rules submitted to the Federal Register are over 700 pages in length – which includes an explanatory preamble, views of the two dissenting Board members, and the majority’s response to the dissent. The Board’s web site, nlrb.gov, also includes other explanatory material, including links the Board’s press release and a redline version comparing the new rules to the existing rules. Those can be viewed here.
It is anticipated that there will be litigation in an attempt to block the rules. It is also possible that Congress could attempt to vacate the rules under the Congressional Review Act or with other legislation, but such action would be subject to a presidential veto and a potential override. Also, although apparently not possible in 2015 if the so called “cromnibus” budget bill is passed, later fiscal year appropriations could forbid funding for certain actions or enforcement under the new rules. All of this will, of course, take time to play out.