On April 14, 2015, the long awaited rules governing union elections went into effect. These so-called ambush election rules were delayed since they were first proposed in 2011 due to a number of legal roadblocks. If your company is being organized under the new rules, everything you knew about the process has likely changed. In fact, these are the broadest sweeping changes in union elections in half a century.
The biggest change is the time between the union filing a petition with the National Labor Relations Board (NLRB) until the actual union election, so instead of 42 days it will now be as little as 11 days. Who benefits from this reduction? Many business groups argue that the reduction is to allow unions to gain the upper hand in winning union elections. The shortened time frame can allow unions to organize a workforce secretly for months and then spring an election on a company who has one week to respond to the union’s “ambush.”
Below are a few highlights of what employers can expect under the new rules:
- Everything Is Electronic: Employers must file any required documents electronically with the NLRB. There are very stringent service requirements that you cannot miss. (The union has deadlines and document requirements as well, if they miss those, an employer should object.)
- Proper Posting No. 1: After properly receiving notice of a union election petition, an employer has to post a notice of the petition for election until the election or until the petition is dismissed or withdrawn. In addition, if the employer communicates with employees via email, then the notice may be required to be circulated electronically as well. Failure to comply with the posting or distribution requirement may be grounds for setting aside the election. The union is required to provide the employer with the information about the posting. Many companies don’t feel comfortable with the union providing the information to them so you may want to get advice independent of what the union is required to give. It is an honor system.
- Position Statement: In addition, the employer must draft and provide their statement of position to the NLRB no later than 7 days after receiving the notice of petition. As part of this submission, the employer must provide any and all reasons that the proposed bargaining unit is appropriate or inappropriate. These objections could be based on job classifications, location of the job, whether the targeted employees are professionals that should be in their own bargaining unit, and even whether they are supervisors (who are not allowed to be organized by a union). In general, ANY reason not listed with support in the employer’s position statement will be deemed waived for all purposes thereafter.
- Employer List 1, 2, and 3: The employer is required to provide lists of people in the proposed bargaining unit, including name, work location and assigned shift. The same information must be provided for employees who should be included or excluded from the proposed bargaining unit. It must be electronic and alphabetized.
- The Hearing: The Pre-Election Hearing will be 8 days from the date of service of the notice of hearing or the next business day thereafter if the 8th day falls on a weekend or federal holiday. Keep in mind that the statement of position is not extended even if the hearing is extended due to a holiday or weekend.
- No Delays: A party will have to show special circumstances to delay the hearing just 2 days and extraordinary circumstances for any longer. In a training put on by the NLRB, the trainer stated that because non-refundable tickets to Europe will not constitute extraordinary circumstances, they mean business.
- What Will Be Litigated Pre-Election?: The issues that used to be litigated pre-election may not be the issues that will be litigated pre-election going forward. The Regional Director has almost complete discretion regarding what will be litigated before the election and what will be litigated after the election. For example, if a small number of employees are impacted by eligibility or inclusion issues, the Regional Director can let them vote and make the determination as to their status later.
- Can Supervisors Vote?: That means that supervisors could be voting. This is especially concerning for employers. Why? The employer is on the hook for any supervisor’s wrongful behavior leading up to the election, but that status may not be established until after the election Just as important, if they are found not to be supervisors, then the employer has non-supervisors in on confidential meetings leading up to the election. To avoid this great care must be made in determining who is and who is not a supervisor.
- What Will The Hearing Cover?: Neither party will know what the hearing officer will consider relevant until there is a determination made during the hearing. Employers who are not allowed to proceed with their arguments may be able to make certain objections and offers of proof , which will be decided during the hearing by the Regional Director, who will not be in attendance during the hearing but who must be available to make rulings
- Who Decides?: Issues that used to be determined by the NLRB will be determined on a regional basis by the Regional Director so what goes in one region may not go in another. There is no entitlement to post hearing briefs; it is up to hearing officer.
- What Happened To The Waiting Period?: The 25 day waiting period to allow the NLRB to rule on a request for review has been eliminated.
- Can I Appeal?: Parties can request a review any time following an adverse decision until 14 days after a final disposition of the proceeding by the Regional Director. The review can be requested before or after the election.
- Companies Must Give Employees’ Personal Information: The voter list is required to be provided to the union and the NLRB electronically 2 business days after the determination which could be the day after the hearing. This used to be referred to as the Excelsior List. This list contains name, classification, work location and shift, but it also must now include home address, personal email, home phone, and personal cell, if the employer has them.
An NLRB Representation Case-Procedures Fact Sheet can be found here. Don’t be caught unprepared, take time to review the guidance put out by the NLRB or give us a call for assistance. For additional information, please contact Sonni Fort Nolan or Joe Orlet.
