The National Labor Relations Board (“NLRB”) has been busy this December. It has issued a new rule changing the timing requirements in representation elections and has rendered a decision restoring an employer’s ability to conduct confidential investigations of workplace-related issues.
Changes to the Election Petition Procedure
Effective April 16, 2020, a final rule promulgated by the NLRB will change certain aspects of the NLRB’s representation election procedures that were enacted in 2014. The new rule provides for slightly longer time periods and procedural flexibility in representation elections, which should benefit employers that oppose union representation for their employees.
A representation petition is a request that employees file with the NLRB to administer an election to determine whether a union will represent a group of employees. The NLRB is required to review these petitions and, if properly filed, to conduct a hearing on contested issues and host an election on union representation. Prior to the hearing, the NLRB issues a notice of hearing. In response to the notice of hearing, the employer is required to file a position statement on the petition, raising any issues it has with the petition, to include whether the proposed bargaining unit includes the correct employees. The petitioner then responds. At the hearing, an NLRB hearing officer renders a decision on these contested issues. Shortly thereafter, the “correct” group of employees votes on the issue of union representation.
Most of the changes in the new rule relate to filing requirements and timing. For example, the old rules mandated that the employer’s position statement must be filed within seven calendar days of the petition, and any argument not raised in the petition is waived. The new rule provides for a slightly longer time to file a position statement of eight business days, and allows a party to amend its position statement upon a showing of good cause.
The new rule also changes the substance of what can be resolved during the pre-election hearing. Under the old rule, if the employer wished to challenge the eligibility of certain proposed voters, that issue did not have to be resolved pre-election. Under the new rule, unless the parties agree to postpone the issue until after the hearing occurs, issues related to voter eligibility can be resolved during the pre-election hearing.
Finally, the election itself will now occur on a less-expedited basis, which gives the NLRB hearing officer more time to resolve threshold disputed issues. The old rule required an election to be held “as soon as possible.” The new rule relaxes this requirement as normally not “before the 20th business day after the day of the direction of election.”
Conducting Confidential Workplace Investigations
On Dec. 16, 2019, the NLRB issued a ruling in Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson, 368 NLRB No. 144, reversing NLRB precedent on the propriety of confidential workplace investigations. As the board in Apogee explained, the NLRB had previously “placed the burden on the employer to determine . . . whether its interests in preserving the integrity of an investigation outweighed an employee’s Section 7 rights.” This doctrine was known as the Banner Estrella test. The petitioner asserted that the Banner Estrella test was overly burdensome on employers and failed to adequately protect employees. To remedy this issue, the petitioner argued that the test under Boeing, 365 NLRB No. 154, should apply, which provides the framework for assessing whether facially neutral employment policies violate an employee’s Section 7 rights. Under Boeing, the NLRB balances “(1) the nature and extent of the potential impact of the rule on NLRA rights, and (2) legitimate justifications associated with the rule.” The NLRB overruled Banner Estrella and determined that Boeing should apply when assessing whether confidentiality policies are facially neutral, removing the burden on employers.
Both of the above outcomes benefit employers and provide some holiday season cheer and joy for companies contesting union organizing or trying to conduct confidential workplace investigations.
The new election rules provide employers with more time to campaign against union organizing and the ability to resolve significant issues prior to the election. And, in the Apogee decision, the NLRB ultimately determined that work rules requiring confidentiality during a workplace investigation are presumptively lawful.