In December 2014, the National Labor Relations Board (“NLRB”) announced new rules governing “Representation—Case Procedures.” The new rules—set to take effect in just under a month, on April 14, 2015—have been commonly referred to as “quickie” or “ambush” election rules, as they will significantly increase the speed at which the union election process moves. The Republican-led Congress has been working to block the new rules from taking effect, but the expectation is that even if such a bill passes both the House and the Senate, it is likely to be met with a Presidential veto. Legal challenges to the new rules are also pending in federal courts, including one lawsuit by the U.S. Chamber of Commerce and other trade organizations in the U.S. District Court for Washington D.C. (Case No. 1:15-cv-9), and another by a group of trade associations in U.S. District Court for the Western District of Texas (Case No. 1:15-cv-26). As of this writing, however, no court has acted to stop or delay implementation of the rules, and although motions for summary judgment are pending in both cases, no hearings have been set and it is not clear when either Court will rule on the respective motions. At this point, employers should operate under the assumption that the new rules will indeed take effect on April 14, 2015.
The new rules allow unions to move much more quickly in organizing campaigns, and shorten employer timelines for responding to those campaigns. The NLRB’s published summary of the rules states that they retain “the essentials of existing representation case procedures” while removing “unnecessary barriers to the fair and expeditious resolution of representation cases.” The summary also states that the rules “simplify representation-case procedures, codify best practices, and make them more transparent and uniform across regions,” while eliminating “[d]uplicative and unnecessary litigation,” reducing “[u]nnecessary delay,” and modernizing “[r]ules about documents and communications . . . in light of changing technology.” Ultimately, the effect of the rule change is to substantially speed up the election process. With the changes, elections could potentially be held within 2 weeks (as little as 13 days) from the date the union files a petition.
The purpose of this article is to highlight the changes to the election process that will soon take effect, and to discuss ways in which employers may prepare in advance to implement the changes and avoid any pitfalls that may accompany the accelerated election process.
Changes to the Election Process Rules
As a threshold matter, the new rules provide that documents may be filed electronically, and that NLRB offices may transmit documents electronically as well (as opposed to by fax or mail, as has been the case in the past). As a result, where there was previously time built in to the process as the parties waited for NLRB notices to arrive via mail, that time will be gone going forward.
Petition Filing Process
Under the new rules, a representation petition must be served on the other party by the petitioner, ensuring employers will receive the petition at the same time the NLRB does (where previously, the petition was submitted to NLRB, and NLRB notified the employer). Additionally, evidence of employee support of at least 30% in the petitioned-for unit (the “showing of interest”) must be submitted simultaneously with the petition, along with the name and contact information of petitioner’s representative (whereas petitioners previously had 48 hours following the filing a petition to submit that information). Because documents may be filed electronically under the new rules, the NLRB could issue a Board Notice of Petition and Notice of Hearing as soon as the same day that the petition is filed.
New Employer Obligations Following Filing of Petition
Within 2 days of receiving the Notice of Petition and Notice of Hearing from the NLRB, the employer must post a Notice of Petition for Election to alert its employees that a petition has been filed, and that there is the potential for an election. Also, an employer that “customarily communicates with its employees electronically” is required to distribute the notice to employees electronically, in addition to posting it. An employer’s failure to properly post and distribute this notice could be grounds to set aside an election. (Posting this notice has previously been voluntary.)
Pre-Election Hearing Setting
In the event an employer decides to pursue a pre-election hearing (to challenge the appropriateness of a proposed unit), the new rules provide that the hearing will generally be scheduled to open 8 days from the Notice of Hearing (absent circumstances the Regional Director determines to be unusually complex). The Regional Director retains authority to postpone the hearing for up to 2 days upon a showing of special circumstances, and for more than 2 days on a showing of extraordinary circumstances. The effect of this change is to standardize the hearing setting process. Previously, different regions set hearings at varying amounts of time following the Notice of Hearing being issued; often two weeks or longer.
Statement of Position Required Before the Hearing
The new rules require that an employer must file a Statement of Position with the NLRB, and serve it on the union, by the date set in the Notice of Hearing (which can be no earlier than 7 days following the Notice of Hearing being issued, and no later than one day before the date of the hearing). Considering the rules provide that generally a hearing will be set for 8 days from the Notice of Hearing, the employer’s Statement of Position will generally be due 7 days after the Notice of Hearing is filed by the NLRB. In the Statement, the employer must:
- Raise all issues the employer wishes to litigate before the election, including a statement regarding why the proposed unit is not appropriate and any proposal the employer may have for an appropriate unit (employees it believes should be included, or those it believes should be excluded). Any issues not included in the Statement may not be raised at the pre-election hearing.
- Identify any individuals whose voting eligibility the employer intends to contest at the pre-election hearing, and the basis for that position. (This information must be included despite the fact that the rules also state that disputes regarding an individual’s “eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.”)
- State the length of the payroll period for employees in the petitioned-for unit and the date the last payroll period ended.
- State the employer’s position regarding the type, date, time and location of the election and eligibility period.
- Provide a list of all names, shifts, work locations, and job classifications of the employees in the petitioned-for unit, as well as the same information for any employees the employer seeks to add to the petitioned-for unit. (The list must be alphabetized and in electronic format.)
- Provide contact information for the individual serving as the employer’s representative at the pre-election hearing.
- State the employer’s position regarding whether the Board has jurisdiction over it, as well as any requested information regarding the employer’s relation to interstate commerce; in addition to any other election bar argument the employer intends to raise.
Pre-election hearings are limited to determining whether a question of representation exists—specifically, whether the petitioned-for unit is an appropriate unit for the purpose of collective bargaining. Related disputes, including those regarding an individual’s eligibility to vote or inclusion in an appropriate unit, generally will be resolved under the rules after the election. The previous rules did not specifically state the purpose of the hearing. Accordingly, collateral issues have been litigated in the past that now will not be resolved until after the election.
The new rules provide that the hearing concludes with oral argument, and no written briefing will be permitted absent the express permission of the Regional Director, and then only on subjects specifically permitted. Previously, parties were permitted to file briefs following the hearing.
The Regional Director is required under the new rules to reach a decision on the matter. There is no longer the possibility to transfer the matter to the Board. If the Board is to address the issue, it will now only be in the context of a review of the Regional Director’s decision.
Setting the Election
If the Regional Director determines a question of representation exists in a unit appropriate for purposes of collective bargaining, the Regional Director will direct an election, specifying the type, date, time and location of the election, as well as the eligibility period. The rules provide that the date and time for the election must be the earliest date practicable consistent with the rules (a requirement that was not expressly required under the previous rules, but has been included in the Case Handling Manual and has therefore generally been the practice of Regional Directors).
The Regional Director retains discretion under the new rules to delay (or “block”) the election in the event a party files a charge of unfair labor practices that could compromise the fairness of the election. This has been the case previously, but the new rules add a requirement that a party seeking to delay/block an election must file an offer of proof and promptly make witnesses available, which adds a couple of hurdles to the process of delaying an election—though employers rarely file blocking charges.
An employer may challenge the Regional Director’s decision to direct an election (within 14 days of the decision). But unless the Board specifically orders, a request for Board review will not automatically stay any action ordered by the Regional Director—so an election would likely go forward even with a review pending, as would the counting of ballots following the election (with the exception of the ballots of individuals whose eligibility to participate in the election has been challenged with good cause by any party or the Board agent, which would be impounded).
Additionally, the new rules remove the 25-day waiting period between the Regional Director’s Decision and Direction of Election (“DDE”) and the election, the purpose of which was to await resolution of requests for review prior to proceeding with the election. The removal of this waiting period results in a substantial reduction in time between hearing and election.
Employer Obligations Following Direction and Notice of Election
The Notice of Election must be posted by the employer in paper at the workplace, and, for employers who customarily communicate with employees electronically, distributed electronically as well.
After the Regional Director issues a DDE, the employer has 2 business days to submit a list of employees’ contact information to the petitioner and Regional Director (an Excelsior list). In addition to basic contact information (addresses), the list must include employees’ personal email addresses and telephone numbers if the employer has such information. The list must also include, again, shifts, job classifications and work locations. Previously, employers had 7 days to produce a list of names and home addresses, and that list was sent to the Board before being distributed to the parties, so the new rules have cut this time considerably. (The rules still require the employer to provide the union the Excelsior list no fewer than 10 days prior to an election; but unions also still have the option to waive that requirement if they would prefer an election take place more quickly.)
Clearly, in addition to reducing the overall timeframe of the process, this change will make it easier for unions to contact employees for campaign purposes. Unions will receive contact information more quickly, and to the extent electronic and phone information is available, the information unions receive will allow them to contact employees away from work more efficiently.
After the Election
Both parties have 7 days following the election to file objections and offers of proof in support thereof. The objections themselves, but not the offers of proof, must be served directly on the other parties. Previously, the rules allowed evidence to be filed after the objections themselves—objections could previously be filed within 7 days of the election, and evidence supporting those objections could be filed within 14 days.
The new rules provide that a post-election hearing to address objections and challenges to the election, if necessary, will be scheduled to open 21 days following the counting of the ballots, or as soon thereafter as practicable. Previously, no timeline was set for this type of hearing, and hearings have regularly been scheduled to take place multiple months following elections.
Regional Director Hears Post-Election Disputes Following Stipulated Election Agreement
Under the new rules, disputes following elections that flow from stipulated election agreements (rather than from the pre-election hearing process) are heard by a Regional Director—not by the Board. Similar to the requirement that Regional Directors make a final decision in a pre-election hearing context, this change limits the situations in which an employer’s arguments may be made to the Board. The Board will only become involved in a reviewing capacity, at which point a challenging party must be able to present a compelling reason that the Board should grant the review.
Overall Effect of the New Rules
The new rules drastically reduce the amount of time built into the representation process between petition and election. Previously, an election would not happen for a month or more following the filing of a petition (up to 42 days if it was a stipulated election). It is now possible, depending on the speed at which NLRB processes, generates and serves documents, for an election to happen less than 2 weeks after the initial petition is filed.
Under the fastest possible case-processing circumstances, the Petition and Notice of Hearing would be filed and issued the very same day, which would set the process in motion. Assuming the Regional Director determined there was nothing unusually complex about the matter, the hearing would be set for Day 8 of the process, with the employer’s Statement of Position due the day before that (on Day 7). Following the hearing on Day 8 (assuming the hearing does not last longer than one day), the DDE and Notice of Election could be filed as soon as the next day (Day 9). The election could be noticed for as soon as Day 13, as the employer is required to post the Notice of Election for at least 3 full working days in advance of the election. The Excelsior list of employee contact information would be due to the union two days later (Day 11), and assuming the union waives the 10 day Excelsior list requirement, the election could take place as early as Day 13 following the filing of the petition.
It is of course possible that certain deadlines in this hypothetical would fall on weekends or holidays, or that the NLRB would not instantaneously process, generate and serve the documents required quickly enough for the schedule to move this fast. But the point remains that it is possible, if not likely, that under the new rules elections will take place between 2 and 3 weeks after the filing of the petition. This is a significant change from the previous system.
Additionally, the shortened timeframe provides less time for employers to prepare employee information that must be turned over to unions in short order, which may lead to unfair labor practice charges.
Preparing for the Changes
Employers can, and should, prepare for these changes, so as not to be caught off guard with having to adhere to a much faster process beginning April 14, 2015. The following are a few basic steps that should be considered as we approach the implementation date for the new rules.
Analyze the Workforce
An employer concerned about potential union organizing should review and analyze its workforce before any such threat arises. The employer should identify what it considers to be potential appropriate bargaining units, and the reasons why; including taking into account varying work locations, job classifications and responsibilities. This analysis should include determining whether the employer’s supervisors are likely to be excluded from organizing under the NLRA. Without this supervisor assessment, an employer will need to scramble after a petition is filed to determine which supervisors may assist in the employer’s response to the organizing threat (as opposed to those who may be part of the threat or included in the petitioned-for unit), and which may be used as witnesses on the employer’s behalf in any election-related proceedings at the NLRB.
Develop Employer Priorities Regarding Appropriate Units, and Support For Those Units
Employers should consider and develop priorities and goals in regards to potential bargaining units, and may be able to take steps in advance, through restructuring or otherwise, to strengthen arguments in favor of those preferred units, should an organizing threat materialize. This process should include identifying management individuals who are knowledgeable regarding the duties and roles of employees and areas of the business, and can speak to these issues in support of what the employer deems to be appropriate units. It may also include preparing written support for these units in advance, which could be used in the drafting of a Statement of Position in response to a petition.
Under the new rules, it has become substantially more important to undertake this type of thoughtful analysis in advance, as it will be very difficult to do so in the few days the employer will have to develop and finalize a Statement of Position after a petition is filed.
Develop and Maintain Employee Information Lists
The new rules require employers to be able to provide specific information regarding employees potentially within a week of the filing of a petition. This can be a large task if the information is not already assembled and accessible. Additionally, employers have only two days after a Notice of Election is issued to provide contact information regarding employees—including personal email addresses and telephone numbers, if the employer has such information. (Relatedly, for this reason, it is worth noting that unless an employer has a need for an employee’s personal email address or personal telephone number, such information should not be retained.) Employers can ease the strain of meeting these tight deadlines if they have employee information already assembled, organized, and in a format that is easy to access and manipulate.
Pre-Designate and Prepare a Management Team
Employers should have a plan for dealing with organizing threats. This plan should begin with a trained team of management individuals, including but not limited to human resources, legal, security, public relations and senior management, designated to coordinate the employer’s response and communicate with employees on behalf of the employer.