Legal Updates

Employers Beware: New NLRB Rules Will Radically Streamline Union Election Process

The National Labor Relations Board (the “NLRB” or “Board”) recently proposed new rules intended to expedite the union election process.  If adopted, the Board’s new election rules will make it much easier for unions to organize employees, as employers will have little time to tell employees their position on unionization and respond to union propaganda before elections are held.  In addition, the new rules will significantly bolster unions’ ability to communicate with employees in advance of elections.

The proposed new election rules are essentially the same as those the NLRB originally proposed in June 2011.  While the Board briefly implemented most of those new rules in April 2012, a federal court quickly invalidated that action on the basis that the NLRB did not have a valid quorum when it voted to adopt the new rules.  The quorum issue has now been resolved, paving the way for the Board’s reintroduction of the new election rules.

Under the new election procedures proposed by the Board, advance planning will be the most effective – and perhaps the only – way for employers to prevail in union elections.  Our planning recommendations are set forth below, following a summary of the new election rules.

Proposed New Election Rules

The Board’s proposed new rules would change the union election process in a number of important respects, including the following:

• A union election could be held as early as ten days after the Regional Director’s issuance of a formal election notice.  Under current procedures, elections are normally conducted within 25 to 30 days following the issuance of an election notice, so this is a major change.
• Election petitions, election notices, and voter lists would be permitted to be filed electronically.
• A pre-election representation hearing, if held, would be required to take place within seven days of a union filing a representation petition.  This change would cut in half the typical interval between the filing of an election petition and a representation hearing, thereby making it much more difficult for an employer to prepare for such a hearing.
• The employer would be required to file, by the date of the representation hearing, a comprehensive position statement with respect to the election petition.  Any issues not raised in the employer’s position statement would be deemed waived.
• NLRB hearing officers would have authority to exclude from representation hearings evidence concerning proposed voters’ eligibility unless those individuals constituted at least 20 percent of the potential votes.
• Similarly, hearing officers would have authority to deny parties the right to file briefs following representation hearings.
• The so-called Excelsior list that an employer must provide to a union before an election would be expanded to include eligible voters’ e-mail addresses, telephone numbers, job classifications, locations, and shifts.  (Currently, Excelsior lists need include only voters’ names and addresses.)  In addition, employers would normally be required to provide Excelsior lists in electronic format.
• An employer would be required to provide its Excelsior list to the union within two days (rather than the current seven days) following the issuance of a Direction of Election.
• Finally, under the proposed new rules, all election-related appeals to the NLRB would generally be consolidated into a single, post-election appeals process.

Implications

By substantially streamlining the election process, the Board’s proposed new rules could make it much more difficult for employers to campaign effectively and ultimately prevail in union elections.  Often, when an election petition is filed, an employer is caught off-guard and must scramble to get its message out to employees and address any legal issues before the election.  The shortened time frames provided for in the proposed new election rules would create major challenges for employers in taking such steps.

Further, by expanding the content of mandatory Excelsior lists and requiring those lists to be provided to unions much more quickly, the proposed new rules would significantly enhance each union’s ability to communicate with eligible voters prior to a representation election.  This change, as well, is likely to work to the unions’ advantage in election campaigns.

Recommendations For Employers

The proposed new election rules will not be finalized at least until after a public comment period (which ended April 7, 2014) and a subsequent public hearing.  Following that process, the Board could proceed with the new rules as currently proposed or implement some modified version of the rules.  Notably, after the new rules are finalized, they are expected to face legal challenges from employer groups.
In the interim, however, employers should assume that the new election rules will eventually go into effect and begin preparing accordingly.  In particular, employers should:

• Adopt and enforce valid policies that limit when employees may solicit and distribute literature in the workplace and that prevent unauthorized visitors from gaining access to the premises.  Such policies should always be reviewed by labor counsel, as the rules governing them are complex;
• Be sensitive to issues that are of concern to employees and attempt to remedy legitimate complaints.  By being proactive on such matters, an employer can alleviate the dissatisfaction among employees that often sparks union organizing campaigns;
• Train supervisors, managers, and human resources personnel in how to recognize and respond appropriately to possible union organizing activity;
• Develop and prepare to implement a plan for communicating the employer’s position on unionization and related issues, both internally and externally; and
• Consider preparing appropriate materials, including written communications to employees, to be used in the event of a future union organizing or election campaign.  Under the NLRB’s proposed new election rules, after receiving an election petition, an employer may not have sufficient time to communicate its message to employees unless those communications have been drafted well in advance.

Significantly, enacting some of these recommendations after a union organizing campaign is underway may be viewed as unlawful retaliation against union activity and, in turn, support an unfair labor practice charge against the employer.  Accordingly, employers that wish to remain union-free should act now to implement these protections.

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Please feel free to contact us if you have any questions about the Board’s proposed new election rules or need assistance with any other labor-law matters.  We regularly assist employers in all aspects of labor law and would be happy to help.