NLRB Strikes Again: Implements New Rules Making It Easier for Unions To Win Elections
The NLRB has been debating implementation of so-called “quickie election” rules on and off since 2011. Earlier this week, by a 3-2 vote, the NLRB finalized, and published in the Federal Register, its new election rules, which will become effective in April. In announcing the adoption of the new election rules the NLRB stated: “The National Labor Relations Board has adopted a final rule amending its representation-case procedures to modernize and streamline the process for resolving representation disputes.” The NLRB Chairman Mark Gaston Pearce stated: “I am heartened that the Board has chosen to enact amendments that will modernize the representation process and fulfill the promise of the National Labor Relations Act.”
While the NLRB attempts to discuss the overall benefits of these new rules, what these amended rules do in reality is make it easier for unions to win elections by, among other things: (a) shortening the timeline between the election petition and the actual election, (b) making it easier for unions to communicate with employee voters, and (c) eliminating a number of methods employers had to challenge election issues before the election takes place.
New Procedures – Some Details
The NLRB has provided a very detailed “NLRB Representation Case-Procedures Fact Sheet” on its website. This document describes the new procedures in detail and even provides a table that compares the current election procedures with the new procedures that will be effective on April 15.
Some of the key changes to the election procedures include the following:
Electronic Filing/Communications – Parties may file documents, such as petitions, electronically, rather than by fax or mail.
Election Voter List/Expanded Excelsior List – The employer must include available personal email addresses and phone numbers of voters on the voter list (aka Excelsior list) in order to permit non-employer parties to communicate with prospective voters about the upcoming election using modern forms of communication. Under current procedures, only a home address was required. The timing for providing the list was also materially shortened. Under the current rules, this list had to be provided to the NLRB seven days after the election agreement was approved or the regional director directed an election. Under the new rules, this list will have to be provided within two business days of the same events. In addition, employers should note that email addresses are now requested on the new I-9 form and thus employers will likely be required to review this form and other employee personnel records to determine if it has an email address for each employee in the bargaining unit before finalizing the Excelsior list.
Pre-Election Hearing -- Pre-election hearings will now be set 8 days after the hearing notice is served in almost all cases.
Early Identification of Disputed Issues – The employer will no longer be able to wait until the pre-election hearing to raise issues. Under the new rules, the employer will be required to respond to the petition by filing a written Statement of Position. In this submission, it must state its position on key issues before the pre-election hearing opens, and generally within 7 days of the pre-election hearing notice being served. Issues not raised at that time by the employer will be barred from being raised at the hearing. However, the union will be able to wait and can respond to the issues raised by the non-petitioning parties at the opening of the hearing. In addition, as part of its Statement of Position, the employer must provide a list of prospective voters with their job classifications, shifts and work locations, to the NLRB’s regional office and the other parties. This is a new requirement.
Litigation of Eligibility and Inclusion Issues – Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. All other issues will now have to be deferred must be litigated post-election and then only if not moot.
Earlier and more complete information to employees – Under the new rules, the employer will be required to post a Notice of Petition for Election containing more detailed information on the filing of the petition and employee rights within two business days of the region’s service of the petition for election. This Notice of Election will provide prospective voters with more detailed information about the election and the voting process.
The NLRB shares significant information about these new election rules on its website.
What Should Employers Do
These new election rules will have a major impact on how employers can respond to union organizing activity and an election petition. Employers will need to be more prepared in advance if they wish to effectively communicate their message in a timely manner in the event of union organizing. Employers concerned about unionization should meet with their labor counsel to discuss their options and methods for combatting these new procedures. However, below are some very basic tips that will likely be applicable to most employers with any concerns about union organizing and these new procedures:
- Employers should make sure that their views on unionization are made known to both management and non-management employees. Employers should use labor relations experts/attorneys in this effort to make sure they do not say anything improper.
- Employers should make sure that their supervisors are trained to recognize the signs of union activity and who to notify if they suspect union activity, so that the employer can effectively recognize and deal with any campaign before it is too late to effectively do anything about it.
- Employers may want hire labor relations experts to audit their workforce to determine vulnerability. This should only be done by a trained expert because the NLRA has very strict guidelines on what can be done to obtain certain information from employees.
- Employers should consider interviewing and identifying attorneys and consultants in advance that it can use to help them in a union campaign, because under the new rules, there will be little time for employers to locate and hire these experts if it does not learn about the campaign until the time of the election petition.