NLRB’s New Election Rules Make It Easier for Unions to Organize

Authored by David P. Frenzia

Dec 18, 2014

In rapid fire succession, the National Labor Relations Board (“Board”) recently issued a flurry of union-friendly decisions. On Dec. 15, 2014, as anticipated, the Board published its Final Rule on Representation—Case Procedures. The Final Rule makes significant changes to election procedures and will inevitably result in elections being conducted in as few as 13 days from the filing of a petition. These changes are scheduled to take effect April 14, 2015. Combined with other recent actions taken by the Board, including the Board’s recent decision in Purple Communications, 361 NLRB No. 126 (2014), (where a divided Board found that employees given access to their employer’s email system have a presumptive right to use their employer-provided email to engage in protected, concerted activities on non-working time), it will be easier for unions to organize unrepresented employees.

The changes to the election rules deliver the gift unions have sought for years—an accelerated election process that reduces the time employers have to present employees with facts about unions and the collective bargaining process so employees can make educated and informed decisions about union representation. By limiting the time employers have to provide employees with information and make counterarguments to union representation, the Board all but guarantees a union win. The alarm has sounded—the time for employers to act is now.

While the Board attempts to mask its motivations for promulgating these contested new procedures by claiming it is “maintain[ing] the current practice of not setting either a maximum or minimum number of days between petition and election rules,” the significant changes will likely lead to elections being conducted in most cases within 22 days. This period could be even shorter if, for example, the union waives the 10-day period required under the rules for the voter eligibility list, known as an Excelsior list.

The impact of these new procedures cannot be overstated. According to the Board’s own performance statistics, in FY 2014, the median time for conducting an election was 38 days and 95.7 percent of all initial elections were conducted within 56 days of the filing of a petition. By substantially truncating the period of time between when a petition is filed and when an election is conducted, the Board narrows the window of time for employers to provide employees with the other side of the story about union representation.

In addition to reducing the time available for the employer’s counter-campaign, the rules seriously hamper an employer’s ability to challenge the union’s desired unit of employees to conduct an election. Moreover, the changes relegate most challenges to the petition to the post-election period, thereby forcing an employer to endure a union campaign that could be damaging to the business and which certainly could adversely affect production, even if the employer has a valid challenge to the bargaining unit or to the voting eligibility of certain classifications of employees.

Changes to the Rules

Although by no means exhaustive, there are a number of changes of which employers should be aware. These changes include:

  1. Electronic filing of a petition;
  2. Mandatory posting of a pre-election notice;
  3. Filing a statement of position setting forth whether and why the petitioned-for unit is appropriate and, if not appropriate, identify the employee classifications, locations, or other employee groupings that must be added to or excluded from the petitioned-for unit to make it an appropriate unit where an employer chooses to proceed to a hearing;
  4. Providing an initial employee list containing employees’ full names, work location(s), shift(s), and job classifications of all employees in the petitioned-for unit, and all employees the employer seeks to add to or exclude from the petitioned-for unit;
  5. Severely limiting the issues for a pre-election hearing by, among other things, precluding an employer from litigating the supervisory status of individual employees or the inclusion or exclusion of categories of employees;
  6. Restricting the filing of post-hearing briefs, which will be allowed only upon the special permission of the regional director;
  7. Eliminating the 25-day waiting period after a Decision and Direction of Election (D&DE) before an election can be conducted;
  8. Truncating the period of time to provide the Excelsior list from 7 days to 2 days following the issuance of the D&DE;
  9. Limiting review of post-election issues where parties stipulated to an election; and
  10. Expediting the post-election objection procedures.

Lawful Actions Employers Should Take Before the Rules Become Effective

These changes will become effective on April 14, 2015—only a very short four (4) months from now. Preparation is key to dealing with the fallout from these rules, especially when combined with the impact from a number of recent union-friendly decisions from the Board.

First and foremost, all managers and supervisors should receive initial or supplemental training on the importance of building and maintaining positive employee relations, the potential impact of operating in a unionized environment, and lawful means to remain union free.

Second, employers should engage counsel to conduct an attorney-client privileged union vulnerability audit to identify potential issues that could lead to organizing activity, to assess the company’s supervisors to ensure that individuals designated as “supervisors” meet the criteria in Section 2(11) of the National Labor Relations Act (“NLRA”), and to identify and analyze potential bargaining unit issues in advance of a petition being filed.

Third, employers must review their policies and procedures. The Board has been very active in attacking employers’ policies over the last several years, contending that overbroad policy language violates the NLRA and chills employees’ exercise of their rights. The mere maintenance of an overly broad policy or rule—even if it has never been enforced—is an unfair labor practice and can be used to set aside an election victory for an employer.

Fourth, prepare now for a possible organizing drive and election campaign. To the greatest extent possible, employers should prepare draft statements of position and other necessary materials to be ready for a hearing should it become necessary. Employers should also have materials readily accessible to communicate with employees that can be tailored and updated once a petition is filed.

If you have any questions about Labor Relations or any other Employment Law matter, please do not hesitate to contact David P. Frenzia, R. Michael Lowenbaum, Corey L. Franklin, D. Michael Linihan, Robert S. Seigel, Whitney P. Cooney, Jamie M. Westbrook, or Ashley A. Diaz.

 

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