On December 12, 2014, the National Labor Relations Board (“NLRB”) issued a final rule that significantly revised its procedures for union elections. The new rule imposes additional obligations on employers while simultaneously drastically reducing the amount of time to prepare for the election proceedings.
The National Labor Relations Act (“NLRA”) grants employees the right to join unions and bargain collectively. When a sufficient number of employees sign union authorization cards stating their interest in having a union represent them (this often happens without an employer’s knowledge), the union can file an election petition with the NLRB. Under the NLRB’s present election procedures, an election normally occurs within one or two months after a union files its election petition. The NLRB has the authority to oversee this process and resolve questions of representation.
For the last several years, as we previously posted, the NLRB has attempted to comprehensively amend its election procedures. These prior attempts at amending the election procedures were struck down in the courts on procedural grounds.
On February 6, 2014, the NLRB re-issued an earlier version of the proposed rule amending its election procedures. After an additional comment period and public hearing, the NLRB adopted the final rule on December 12, 2014. The most significant changes set forth in the final rule include the following:
· Election petitions may be filed electronically.
· Employers must distribute all election notices to employees electronically if the employer usually communicates with its employees electronically.
· Employers must submit a position statement identifying the issues in dispute one (1) day before the pre-election hearing. Litigation inconsistent with the position statement will not be permitted. The position statement must provide a list of prospective voters and their job classifications, shifts, and work locations.
· The pre-election hearing will generally be scheduled eight (8) days from notice of the hearing.
· The Regional Director will decide which, if any, voter eligibility questions should be litigated before an election is held. Generally, only evidence that is relevant to a question that will be decided may be introduced at the pre-election hearing.
· The pre-election hearing will conclude with oral argument. Absent express permission of the Regional Director, written briefing will not be permitted.
· The Regional Director must decide any pre- or post-election disputes, subject to discretionary NLRB review.
· Elections will no longer be automatically stayed in anticipation of requests for review of Regional Director actions, nor will a request for review stay the election unless specifically ordered by the NLRB.
· Employers must electronically transmit a voter list to the other parties and the Regional Director within two (2) business days of the direction of election. The voter list must contain information about the employees’ job classifications, shifts, and work locations, as well as contact information, including personal e-mail addresses and phone numbers if the employer has such information.
· Any post-election hearing on challenges and/or objections will be scheduled twenty-one (21) days after the votes are counted, or as soon as practicable thereafter.
Two NLRB members dissented from the final rule, expressing concern about, among other things, the final rule’s apparent focus on speeding up elections at the expense of the parties’ rights. “Much of the problem,” the dissenting members also observed, “involves the immense scope and highly technical nature of the Final Rule.
Under the final rule, Regional Directors set the election for “the earliest date practicable.” In light of this directive and the condensed time limits, the rule significantly limits employers’ opportunity to communicate with employees after a union has filed an election petition with the NLRB. Commentators estimate that elections now may be held in as little as two weeks after a union files an election petition. With most unions not filing election petitions until they have union authorization cards from 60-70% of those eligible to vote in the election, two weeks is a short timeframe during which employers will have to persuade their workers that a union is not in their best interest.
Employers need to be attentive to signs of early union organizing efforts and should take steps to train management to understand early warning signs and risks involved with having a union.