The National Labor Relations Board (NLRB or Board) has adopted a final rule amending its representation-case procedures that will shift the litigation of most disputes until after the election, speeding up elections, and limiting the opportunity for an employer to run an effective campaign. The rule will take effect on April 14, 2015. This rule was approved by a vote of three in favor to two against: Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer voted to adopt the regulation while Board Members Philip A. Miscimarra and Harry I. Johnson III dissented, calling the new election rule “the Mount Everest of regulations: Massive in scale and unforgiving in its effect.”
The impact of this rule will be that elections will be held as soon as possible once a union files a Petition for Election with the NLRB. This will place a significant time limitation on the ability of an employer to effectively communicate its position on the election to employees. Disputes over whether employees should be included in the bargaining unit and vote in the election will be delayed until after the result of the election has already been decided. Most appeals to the Board will also be deferred until after the election, effectively empowering Regional Directors while diminishing the role of the members of the NLRB.
This new rule is substantially similar to the new election rule adopted by the NLRB in 2011. However, at that time, the Board was operating with only three members, and the Republican member of the NLRB was not present on the day that the rule was adopted. Therefore, that rule was ultimately invalidated in court, as the Board did not have a quorum when it voted to adopt that regulation. As all five members of the Board voted on this regulation, there will be no dispute over quorum this time.
The most important changes in the election process that flow from this new rule are summarized as follows:
Elections Will Be Held Sooner
Unit Eligibility Issues: Currently, a party may insist on a pre-election hearing over certain voter eligibility and inclusion issues raised by both parties. The pre-election hearing process frequently provides employers with crucial additional time between the filing of the Petition and the date of the election during which it may run an effective campaign to ensure that voting employees are fully educated on the issues and impact of the election. Under the new regulation, the NLRB has decided that many eligibility and inclusion issues do not need to be resolved in order to determine whether an election should be held. Therefore, most eligibility and inclusion disputes will be deferred until a post-election hearing, and a pre-election hearing will only take place in limited circumstances. The Board believes that election results may moot the need to litigate these issues; however, that will only be the case where employees vote against union certification.
No Post-Hearing Briefs: Under existing procedures, both parties may file a brief with the Regional Director within seven days of the conclusion of a pre-election hearing, and that deadline may be extended by 14 days or more. Under the new rule, a party is provided with an opportunity to present an oral argument before the close of the hearing: Written briefs will be allowed in the discretion of the Regional Director. This change will effectively speed up elections by an average of three weeks or more, severely limiting the time in which an employer may respond to a Petition. Further, as disputes over the composition of bargaining units often involve the application of technical case law to the facts presented at hearing, the parties will often be deprived of the best method to effectively present its position for consideration by the Regional Director. The emphasis is no longer on making the correct decision; the emphasis is on making a quick decision.
Appeals Postponed: A party that wishes to appeal the ruling of a Regional Director in a pre-election decision must make that appeal to the Board before an election ever takes place. This allows the NLRB an opportunity to decide key bargaining unit issues which may impact the outcome of an election and influence the nature of an employer campaign. The new rule now delays the time for requesting review of the Regional Director’s decision until after the election. The NLRB majority believes that this change may avoid many unnecessary appeals; however, once again, that will only be the case where employees vote to reject the union. This change will have the further effect of reducing the number of NLRB decisions on bargaining unit issues, thereby allowing greater discretion to the Regional Directors in this important area.
No Stay of Elections: At present, if either party files a request for review of the Regional Director’s decision, an election may be delayed as long as 30 days to allow the Board to consider such request. Since the Board majority believes that such requests are rarely granted, the new rule has no provision for an automatic stay of an election. The loss of the automatic stay of election following a parties’ request for review of a Regional Director’s decision will deprive employers of another opportunity to extend the time in which it may argue its case on the union’s petition directly to its employees.
Diminished Board Role in Election Disputes
In rewriting nearly all procedures governing elections, the new rule eliminates the mandatory role that NLRB members previously had in resolving post-election questions. Currently, in reviewing such a request, the Board must review every aspect of post-election disputes, regardless of whether any party has objected to it. Under the new rule, the Board is not required to review aspects of post-election regional decisions as to which no party has raised an issue, and may deny review consistent with the discretion it has long exercised in reviewing pre-election rulings.
Reduced Concerns Over Employee Privacy
The rule imposes new mandatory disclosure requirements obligating employers to disclose personal contact information of unit employees, including all personal email addresses and cell phone numbers in the employer’s possession. The new rule does not give employees the option to “opt-out” of being included in such disclosure. Currently, an employer is not required to share a list of prospective voters with the NLRB’s Regional Office or the other parties until after the Regional Director directs an election or approves an election agreement. Generally, the new rule requires an employer to provide a list of prospective voters with their job classifications, shifts, and work locations at least one business day before the pre-election hearing. Therefore, a union will be given an employee’s personal information even if it subsequently determined that the employee should not be included in the unit. The current rule provides that the voter list provided to the union to enable it to communicate with voters about the election includes only names and home addresses, and that list need not be provided until seven days after the approval of an election agreement or the Regional Director’s decision directing an election.
The new rule allows for election petitions, election notices, and voter lists to be transmitted electronically, and allows NLRB Regional Offices to deliver notices and documents electronically, rather than by mail. This change is consistent with other modernization at the Board and is not controversial. Similarly, the parties, and especially the prospective voters, are provided with limited information concerning the process. Under the new rule, parties will receive a more detailed description of NLRB representation case procedures, information about the petition and the rights and obligations of each party, and the Notice of Election will provide prospective voters with more detailed information about the voting process.
The new rule also requires the parties to serve a a Statement of Position with the petition and response. It is intended that this Statement of Position will help parties identify the issues that each side may want to raise in a hearing. While the requirement for each party to set forth its position seems to be neutral, the new rule will generally not allow litigation inconsistent with these positions.
The new rule requires the Regional Director, in most cases, to set a pre-election hearing to begin eight days after a hearing notice is served and a post-election hearing 21 days after the tally of ballots.
While NLRB Chair Pearce stated that he believes that these amendments will “ensure that its representation process remains a model of fairness and efficiency for all,” he ignores the fact that the new rule unnecessarily shortens the time needed for employees to understand relevant issues, compelling them to “vote now, understand later.” In order for employees to truly have free choice, employees should be guaranteed enough time for making important decisions. The rule operates in reverse, making the available time as short as possible. The new rule fails to satisfy the fundamental question of whether and why rule-making is necessary. As objective data shows that substantially more than 90 percent of elections occur within 56 days after the filing of a petition, there is no substantial basis for rewriting election procedures. The accelerated deadlines, limited right to amendments, and strict rules on appeals unreasonably alter the long-established NLRB practice of allowing for adequate notice and opportunity to introduce relevant evidence, issues, and arguments.
The most important takeaway for employers is that it will be too late to mount an effective employee campaign if they wait to start until a petition is filed at the NLRB. Employers that place a priority in maintaining a union-free environment in their workplace must run an ongoing campaign of education, employee engagement, and active supervision. Starting in April, the only way for an employer to avoid an “ambush election” will be to maintain a constant state of readiness.
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