We previously advised you that on December 22, 2011, the National Labor Relations Board (“NLRB”) voted to implement what is commonly known as its “Speedy Election Rule” (sometimes “Rule”). Although suit was brought to enjoin the Rule and have it declared unlawful, the Court has not acted, the case remains pending, and the Speedy Election Rule went into effect on April 30, 2012. Now the question presented is, whether your company is prepared to successfully meet the challenge of the Speedy Election Rule.

To summarize the Rule, it states:

1. The sole purpose of an NLRB pre-election representation hearing is limited to a determination whether “a question concerning representation exists,” e.g., whether the proposed bargaining unit is an appropriate unit, whether there is sufficient showing of interest to obtain an election, or whether there is a statutory bar to an election. If a dispute involves less than 20% of the proposed bargaining unit, that issue will be deferred. The Rule precludes litigation as to eligibility of persons whose inclusion in the unit is in dispute or supervisory or managerial status of particular persons.
2. The Rule empowers NLRB Hearing Officers to exclude evidence unrelated to the narrow questions of representation outlined above.
3.  The Rule permits Hearing Officers to reject any post-hearing brief unless they determine that it will assist the decision maker in resolving an election dispute presented at the hearing.
4. The Rule eliminates the current Board regulation prohibiting an election sooner than 25 days from the date of the Notice of Election. There is no longer a minimum number of days between the date when a petition is filed and when an election may be held. The Rule will reduce the time frame from “pre-election” filing to an election, from the present 38 to 60 days to an estimated 14 to 25 days.
5. The Rule requires “special” permission from a local Regional Director to appeal any post-hearing pre-election ruling to the NLRB.
6. The NLRB empowered itself to reject pre- or post-election appeals.

On April 26, 2012, the NLRB General Counsel (GC) issued Memorandum GC 12-04 (“Memo”), entitled, “Guidance Memorandum on Representations Case Procedural Changes.” This Memo details how NLRB Regional Directors should process election petitions including, but not limited to, docketing election petitions; the issuance of a Notice of Hearing; the granting of hearing postponements; the conduct of preelection conferences; the conduct of hearings; the selection of hearing dates; timelines for the presentation of the Excelsior; or the voting-list, post-hearing briefs, and appeal rights. The clear goal is to expedite representation hearings and elections. The Memo does not set a minimum number of days to conduct an election and leaves that decision to the discretion of the local Regional Directors.

In sum, these expedited procedures will work to deny employers a sufficient opportunity to communicate with their employees regarding their individual and collective rights to vote against union representation or to refuse to engage in union activity. Therefore, it is strongly recommended that rather than wait for the results of the pending Court challenge to the Speedy Election Rule, unrepresented employers or employers with units of non-union employees establish a crisis management team to train their managers (and employees) regarding the National Labor Relations Act (“NLRA”), employer and employee rights, unions, collective bargaining, and unfair labor practices. Absent such a plan, under the Speedy Election Rule, there may be insufficient time to effectively and successfully communicate with employees to defeat a union organizing campaign. The time to plan is now.