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Dec 2014
16
December 16, 2014

Dramatic New NLRB Rules Speed Up Union Elections, Put Employers at Disadvantage

 
  • The Issue: New federal rules will expedite union representation elections and allow organizers to more easily use electronic communications to recruit members.
  • Why This Matters: The new rules make it easier for unions to organize and more challenging for non-union employers to maintain that status.
  • Employer Considerations: Listen to employee concerns, communicate in ways that minimize workers’ interest in unions and respond quickly if a union organizing campaign surfaces.
On Dec. 12, 2014, the National Labor Relations Board issued its long-awaited, revised rules for representation election procedures, which take effect April 14, 2015. The main purpose of the new rules is to expedite union representation elections, although a number of the changes are designed to take advantage of modern communications tools.

These rules are significant and dramatic. The election process will definitely be faster but, from an employer’s perspective, will not lead to fairer results or enhance employees’ abilities to vote based on all available information, due to the time frames for elections being compressed.

Dozens of changes to NLRB procedures are contained in these new rules. The most significant are:
  • Unions will be able to file representation petitions electronically, rather than having to mail or hand-deliver them. At the same time the petition is filed, the union must also provide the authorization cards signed by at least 30 percent of employees in the prospective bargaining unit.
  • At the same time the union files the petition, it must serve a copy on the employer, together with a NLRB notice explaining its election procedures, protections for employees and the potential for an election to occur.
  • When the employer receives the petition and associated notices, it must promptly post the notices. This is a new requirement; currently, the posting of such notices is voluntary. The new notices will be more detailed than the current form notice.
  • Upon receipt of the petition, the NLRB will send out a Notice of Pre-Election Hearing. The hearing is to be scheduled to begin eight days after the date of the notice. Currently, depending on the NLRB region, such hearings generally begin 7-to-15 days after the date of the notice.
  • The pre-election hearings must continue day-to-day, instead of occurring on non-consecutive days.
  • One day before this hearing, the employer must file a position statement identifying the issues it wants to litigate; any issues not raised in this position statement may be considered waived. At the same time, the employer must take a position on the date, time and place of the election, the type of election to be conducted (e.g., on-site election or mail balloting) and the payroll period for voter eligibility.
  • At the same time, the employer must provide the NLRB and the union with a list of the names, shifts, work locations and job classifications of employees in the petitioned-for unit, as well as the same information for any employees it is seeking to add to the unit.
  • The union must respond to the employer’s position statement, including the details of the election itself, at the beginning of the hearing. Until this point in time, the employer likely will not know the union’s position on some issues.
  • The issues to be decided at the pre-election hearing are limited to issues necessary to determine whether it is appropriate to conduct an election. Issues about whether relatively small groups of employees are eligible to vote may not be decided at this stage of the NLRB regional director’s review.
  • When the hearing ends, the parties will make their closing arguments orally, unless the NLRB regional director permits the filing of post-hearing briefs. Briefs have always been accepted in the past.
  • The decision of the regional director will no longer automatically go to the NLRB. Rather, a party may request a NLRB review of the decision, but “requests will only be granted for compelling reasons,” according to government documents.
  • Such a request will not cause an election to be delayed unless the NLRB makes a specific order to this effect.
  • Current rules generally require the election to be held within 25-to-30 days after an election is directed, which is normally immediately after the parties agree to an election or the regional director issues his decision on the issues presented at the pre-election hearing. This timeframe is being deleted so that elections occur earlier than at present.
  • The regional director will be expected to transmit a Notice of Election at the same time s/he directs that an election will occur.
  • Within two business days of the direction of election, the employer must electronically send the regional director and union a list of employees with their addresses. To the extent the employer knows employees’ personal email addresses and phone numbers, those must also be provided at this time. The current rules give employers seven days to provide mailing addresses and do not require them to reveal employee email addresses and phone numbers.
  • The employee list must also include each employee’s shift, job classification and work location.
  • If the employer customarily communicates with its employees electronically, it must distribute all election notices to employees electronically, in addition to posting them at the workplace.
There was a concern that the NLRB would set specific and tight time limits for the number of days that could pass between the filing of the petition and the election. That did not happen. However, the primary purpose of these rules is to speed up the election process. The NLRB’s general counsel will be responsible for revising the current guideline for when elections should be held. According to the board’s explanation, the average time between a petition and an election is 38 days. This is clearly not acceptable to the board, so we can expect a significantly shorter period for elections.  How short this period could be is currently unknown, but consider this portion of the NLRB explanation of its new rules:
 
Under current rules a delay of 25-to-30 days is automatically imposed between the direction of the election and the election. There can be absolutely no question that eliminating this waiting period addresses a very significant source of delay. .  .

These changes will present some challenges for non-union employers that seek to maintain that status. The key point for such employers is to have an ongoing strategy to communicate with employees in such a way that they do not feel a need to try to organize a union. It will become increasingly important for these employers to listen to employee concerns, and be aware of and effectively respond to negative employee sentiments. If information about a possible union campaign becomes known, a strategy to promptly and effectively respond must be developed.

For more information, contact Kevin McCarthy (269.276.8109 or kmccarthy@wnj.com) or the Labor and Employment Practice Group at Warner Norcross & Judd.

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