On December 15, 2014, the National Labor Relations Board (NLRB) published its much-anticipated final rule (Rule) on “quickie elections.” The Rule, which amends union representation and election procedures, is scheduled to take effect on April 14, 2015.
Not surprisingly, unions applauded the issuance of the Rule as it will make it easier for unions to organize unrepresented employees. The Rule allows for a shorter period of time between the filing of a representation petition and the holding of an actual election, which, in reality, gives employers less time to investigate and present the reasons why a union may not be appropriate for an employer’s workforce. It also provides for a variety of changes to election procedures that have existed for years, including the following:
- A union may now electronically file its petition with the NLRB and must serve a copy on the employer. The employer is now required to post a Notice of Petition for Election to advise employees about the election and their rights under the National Labor Relations Act (Act). Failure to post and/or distribute the notice to employees within the required two business days will be grounds to set aside any future election.
- If an employer elects to proceed to a hearing regarding the appropriateness of the petitioned-for unit, the employer is now required to file, within seven days after the notice of the hearing, a Statement of Position, which must set forth why the unit is not appropriate and which must identify employee classifications, locations or other groupings to be added or excluded from the unit. If an employer fails to raise issues in the Statement of Position, that employer will be precluded from raising these issues at a pre-election hearing.
- The pre-election hearings are now to be held eight days from the NLRB’s service of the notice of hearing on an employer, and the issues in the hearing are limited to representation questions, i.e., whether the appropriate unit of employees was selected for representation by the union. The employer is now precluded from litigating whether an employee is eligible to vote or be included in a bargaining unit; those questions will be delayed until after the election. Unlike the current practice, an employer will not be able to conclusively determine who is considered a supervisor under the Act and, as a result, will not know who may be used as an employer representative in any organizing campaign against the union. The changes will not only shorten the hearing process, but they also will remove the currently applicable seven-day period to file post-hearing briefs with the NLRB.
- The current 25-day waiting period between the issuance of a Decision and a Direction of the Election (DDE) after the hearing and the holding of the election is now eliminated.
- Within two business days after the issuance of a DDE by the Regional Director or the approval of a Stipulated Election Agreement (where the parties may agree to election terms without going to a hearing), the employer will be required to electronically file with the NLRB and serve on the union a list of eligible voters, which has traditionally been called the “Excelsior list.” The new Rule requires that the Excelsior list now include the disclosure of each employee’s name, address, available personal cell and home telephone numbers and personal email addresses; work locations; and shift and job classification information. The Rule leaves untouched the current requirement that the Excelsior list must be in the hands of the union for at least 10 days before any election is held. Unions may choose to waive this 10-day period in order to further speed up the process for an election.
- Any party filing objections to an election must do so within seven days of the tally of ballots and, at the same time, submit evidence in support of the objections. If a hearing is required on these objections, the hearing must be held 21 days from the tally of ballots. This is a significant change because employers currently have seven additional days to investigate and file evidence in support of any objections filed with the NLRB. Generally, under the current practice, post-election hearings often may not be scheduled for two to three months in the future.
- It is possible that an election could be scheduled and held within two weeks after the filing of the petition with the NLRB (if the union waives the 10-day Excelsior period), which is a significantly shorter time frame than the present median time of 38 days.
What can an employer do to prepare for the new rules and any potential organizing campaign that it may be faced with? Here are some suggestions:
- Initially, an employer’s management team should be trained on why positive employee relations can help to avoid festering issues that ultimately result in employees looking for a third party to resolve differences with their employer. Many of the problems that push employees toward potential unionization are a result of a supervisor or supervisors who fail to effectively communicate with employees or who discipline employees unfairly and inconsistently. Managers should also be provided information on how unions work, as well as how they may rise to prominence in an organization, how to determine when employees are considering union organizing and what unions generally do in order to obtain the necessary authorization to file a petition with the NLRB.
- An employer should review whether there are any issues concerning wages, hours and other terms and conditions of employment that are causing problems in the workforce ahead of a potential organizing campaign by a union. With the quickie election procedures that will be in place, it will be more difficult to vet these issues within the short period of time that an employer will have to gear up for an organizing campaign. This information may be obtained from line supervisors and, when appropriate, the employees to determine what issues may cause a disgruntled employee to seek the representation of a union.
- An employer should determine which potential bargaining units may be considered prior to receiving any notice of union organization. Given recent case decisions by the NLRB, the new rules on the submission of a Statement of Position and the limited time available to prepare for a hearing on the scope and composition of particular bargaining units, it would be prudent for an employer to review its operations and, if necessary, restructure those operations in order to support any argument for a bargaining unit or units deemed appropriate by the employer.
- Under normal circumstances, the success of defeating a union organizational campaign depends on who communicates the employer’s position and how that position is communicated to employees. Determining that position in advance and having a strategy as to which company representatives will be part of the campaign team is even more critical in view of the limited amount of time that an employer will have under the new Rule. Selecting representatives, who may come from various parts of the company (e.g., human resources, supervisors, legal, etc.), along with making sure that the selected individuals are fully informed as to what an employer is legally permitted to do in countering an organizational campaign, will be critical to the employer’s success in winning any election.
- An employer should have all information concerning its employees updated in a form that would be easily accessible if a petition is filed by a union. Names, addresses, job classifications, locations and any other information concerning employees should be gathered and kept current so that the company may move forward quickly to allow counsel to prepare a Statement of Position and proceed to a pre-election hearing on the appropriateness of the unit identified in the union’s petition.
Although the new Rule will make it more difficult for employers to oppose a union’s organizing effort, performing some of the above-referenced tasks in advance and updating information and procedures on a consistent basis will put employers in the best position to defeat an organizing campaign under the tight guidelines issued by the NLRB.