As expected, the National Labor Relations Board again adopted new Rules for union representation cases, significantly reducing the period between the filing of a petition and a union election. While the NLRB characterizes its actions as modernizing its processes, the real impact is to deny employers an adequate opportunity to stage an anti-union campaign prior to employee voting. The final Rules are effective April 14, 2015.
Specifically, the NLRB approved the following procedural changes:
- Petitions can be filed and transmitted electronically. All filings may be transmitted between the parties and the Board electronically, and notices from the Board may be served electronically as well.
- The regional director generally will set a pre-election hearing for eight days after the Petition is filed. Hearings on post-election issues generally will be set for 14 days after the filing of objections.
- Parties may now wait until after an election is held to file a request to review decisions made in the pre-election hearing. As a result, there will be no automatic stay of an election after the regional director issues a decision and direction of election.
To expedite any pre-election hearings and avoid attempted delay tactics, the NLRB revised its substantive filing and appeals requirements:
- Petitions must be accompanied by a Statement of Position, both of which should be served on all parties contemporaneously with filing.
- Non-petitioning parties must file and serve a Position Statement prior to the pre-election hearing.
- Pre-election hearing issues will be limited to those that are necessary to determine whether an election should be held. Arguments on issues deemed unnecessary, such as eligibility and inclusion issues affecting only a small percentage of the appropriate voting unit, are postponed until after the election.
- The NLRB has wide discretion to decide which post-election regional decisions it will review.
The NLRB also altered the obligations of employers in responding to and handling representation petitions:
- The NLRB regional office will serve a Notice of Hearing and a Notice of Petition for Election. The employer is required to post a Notice of Petition for Election within two business days of the region’s service of the Petition.
- One day prior to the pre-election hearing, employers will be required to provide a list of prospective voters with their job classifications, shifts, and work locations to all parties, including to the NLRB’s regional office.
- Voter lists, which must be submitted within two days of the regional director’s approval of an election agreement or a decision directing an election, must now include personal phone numbers and email addresses, if available to the employer.
Given the expedited election process, employers must focus on year-round anti-union avoidance programs, rather than rely on anti-union campaigns that begin after the filing of a representation petition.
This article can also be viewed on Forbes.com.