May 14th marked the one month anniversary of the effective date of the NLRB’s Amended Representation Election Rules. That day the Regional Directors for NLRB Regions 2 (New York, NY), 22 (Newark NJ) and 29 (Brooklyn NY) discussed their offices’ experiences processing representation petitions filed since the Board’s Amended Election Rules took effect on April 14th. The following day, Friday May 15th, in Washington, D.C., US District Court Judge Amy Berman Jackson heard argument on plaintiffs’ motion for summary judgment in the lawsuit brought by the US Chamber of Commerce and other business groups challenging the new rules as violative of the National Labor Relations Act. The hearing focused on the plaintiffs’ claims that the new election rules violate the Act and the Administrative Procedures Act. While it is generally not possible to predict from argument how the court will rule, Judge Jackson appeared skeptical that the plaintiffs had established that they were entitled to summary judgment at this stage.
While respect to how the new rules are actually impacting the number of representation petitions being filed, how they are being processed and how the new rules are effecting election results. one month may not be representative, the data to date offers insights that will be of interest to employers, unions and attorneys in this area, perhaps the most interesting insights concerned the fact that in these 3 Regional Offices, there were NO hearings held on petitions filed since the amended rules took effect and in every case, either the parties entered into a stipulated agreement between the petitioning union and the employer for an election or the petitioning union withdrew its petition. Of a total of 32 petitions filed in these regions during the one month period, 8 went to an election and 24 were withdrawn prior to an election could be conducted.
According Regional Directors Karen Fernbach (Region 2), David Leach (Region 22) and James Paulsen (Region 29), the stipulated elections were scheduled for between 25 and 30 days following the dates the respective petitions were filed. This data confirmed the expectation that the amended rules would result in elections taking place much closer to the filing date than under the long standing rules that they replaced. Under the former rules, in recent years most elections have been held in the range of 36 to 42 days after the filing. What is not clear at this point is how many of the petitions that were withdrawn after employers filed Statements of Position challenging the proposed units as inappropriate. Under the amended election rules, if an employer contends that the unit must include additional classifications and/or locations, the employer must provide both the regional office and the petitioning union with the names, classifications, work locations and shifts of the employees the employer believes must be included in the union. Once a union receives that data, it very well may choose to withdraw its petition and then expand its organizing to include such additional employees, armed with the information about them.
The Regional Directors also reviewed the procedures that the new rules put into place, which were recently summarized in Memorandum issued by the Board’s General Counsel Richard F. Griffin, Jr. in General Counsel Memorandum 15-04. It was clear from the Regional Directors’ remarks and their answers to many probing questions that employers would have to respond within days after a union files a representation petition by submitting to the NLRB Regional Office, by e-filing, an explanation of all unit, placement and related issues they intended to raise at pre-election hearing, together with lists of names and job titles or classifications of not only all person who fell within the description of the alleged appropriate unit included on the union’s petition, but also of all persons whom the retailer believes should be included in the unit. These must be provided to the union as well as the Board.
Any issues not raised in the employer’s Statement of Position, which must be filed and served on the union within 7 days of the filing of the petition and not later than noon the day before the hearing is scheduled, will be waived.
A notice of hearing will be transmitted immediately to the parties, by email, and the hearing will be set for eight days later. The employer will be allowed at hearing to litigate only those issues it raised in its pre hearing statement. And, as to many of those issues, it will be allowed to make only pro forma arguments. According to the three New York area Regional Directors, unless the employer has raised eligibility issues as to more than 20% of the total voter complement, all unit placement and eligibility arguments will be reserved for the challenged ballot process at the election or for a post-election hearing. Obviously, if the challenged ballots are not determinative, issues as to those voters will never be heard. While this benchmark is not included in the amended rules, it has been mentioned on a number of occasions by representatives of the NLRB at various training programs conducted for the labor and management bars throughout the country. It appears that this 20% standard has now replaced the 10% threshold that the Board relied upon under the prior rules and procedures.
In response to a series of questions as to how an employer could reserve its positions on issues for later Board or Court of Appeals review after it refuses to bargain with a union election winner, the Regional Directors acknowledged only that they might wish to make offers of proof at the pre-election hearing…but added that hearing officers would be under instructions not to burden the R case record with protracted offers of proof, or to allow a party to delay the hearing “unnecessarily.” Further, the Regional Directors stated that they were under orders not to allow hearings to go on for too long, and not to allow any post hearing briefs. All argument would have to be made orally at hearing.
Finally, the Regional Directors reminded attendees that within two business days of a stipulated election agreement or a Regional Director Decision and Direction of Election, the employer will be required to submit to the Regional Office AND to the union electronically, in searchable format, a detailed list of all persons with job descriptions/titles, within the unit, all persons outside the directed unit whom the employer asserted should have been in the unit, and all persons it expected to challenge at the polls, together with their email addresses and home telephone numbers. An important change to this Excelsior List requirement under the amended rules is that not only must an employer provide employees’ names and home addresses, it must also provide the NLRB and the union with the employees’ home telephone numbers and their personal email addresses to the extent that the email addresses are reasonably available.
The new NLRB Representation and Election Rules will be a significant challenge for employers and their counsel. More importantly, all of this will be layered on to at most a two week time frame, making it nearly impossible for diligent clients and their attorneys to comply with the law, and requiring employers to focus year round on appropriate practices and communications to their employees concerning the benefits of maintaining a non-union status.