On Tuesday, April 14, I attended a training session presented by Chip Harrell, NLRB’s Region 10 Regional Director. Let me start by highlighting 3 things said by representatives of the NLRB at the session:
- The NLRB was “not celebrating, but introducing” the new rules.
- Union elections will be a “brave new world”.
- If the elections do not proceed quickly enough, the Regional Director will be getting calls from Washington asking why. “Lots of things will be done as quickly as possible.”
It should be noted that there are a number of pending court cases challenging the new rules, but as of the time of this publication, I am not aware of any court issuing an injunction staying the rules.
In addition to the April 6, 2015 Memorandum published by NLRB General Counsel, a side by side comparison chart was distributed at the training. The comparisons are rather stark, both as to procedure and time limitations. Of particular interest to employers, whether unionized or not, are the following tidbits of information:
- The various forms needed to petition for an election, and the employer’s response, are available online at the NLRB website.
- Any petition filed before April 14 is governed by the old rules.
- After a proper Petition for Election is filed, the Regional Director (RD) will set a pre-election hearing to begin 8 days after a hearing notice is served. The RD has limited discretion to grant a 2 – day extension for special circumstances, and an additional 2 – day extension for “extraordinary” circumstances. It is not clear what these circumstances will be.
- The employer must file its Statement of Position, including a list of prospective voters, job classifications, shifts and work locations within one business day of the hearing. The lists should be searchable, preferably in Word Table format.
- The employer’s failure to properly file a Statement of Position means that it cannot contest the appropriateness of the Unit.
- Employers MUST TRAIN supervisors and managerial staff on what to do if they receive a Petition for Election. If it is properly served on a representative of the employer, failure to respond, even though the “right” person never knew about it, means that the employer cannot contest the appropriateness of the Unit.
- The elections will be scheduled at the “earliest date practicable”, usually not to exceed 30-35 days.
It was pointed out that there has been a lack of filings of petitions around the country over the past month or two. It is believed that there will be a spike in filings now that the new rules have taken effect.
Practice pointer. Petitions to form a union can be filed in almost any business, with small units being the target of the petition. With the new rules in play, it is anticipated that unions around the country will increase their visibility and attempt to unionize more and more businesses. Employers MUST take any steps to unionize seriously, and be prepared to act immediately should they receive a Petition.
$2 million jury verdict post NLRB ruling in favor of nurse
I came across a blog article by Matthew Austin, with the firm of Roetzel & Andress. With his permission, I am linking to it here. In Ohio, Ann Wayt, a nurse for 38 years, was a 24-year employee at a local Community Health Systems hospital. She was leading a union organizing drive when she was terminated for allegedly violating policies and procedures for patient care. Post termination, the hospital sent a complaint to the Ohio Board of Nursing trying to have her nursing license suspended or revoked. She filed a complaint with the NLRB, alleging that her termination was pretextual and that the hospital retaliated against her as the result of her union organizing activities. The NLRB Administrative Law Judge ordered the hospital to reinstate her, pay her back wages and withdraw its complaint to the Nursing Board. The hospital refused, and the NLRB filed for an injunction in Federal Court. The Federal Judge reinstated her and enjoined the hospital from continuing its unfair labor practices involving the potential union. At the same time, Wayt filed a state court action alleging defamation of character as the result of the attempt to suspend or revoke her license. The Jury awarded more than $2 million, including $800,000 in compensatory damages, $750,000 in punitive damages, and attorney’s fees.
Practice pointer. All employers must be cognizant of the potential pitfalls and liabilities associated with protected concerted activity, even if the workplace is not unionized. Especially vindictive action, such as the alleged wrongful attempt to have a state board suspend or revoke a license, may lead to claims of defamation and other causes of action. Be careful out there.