Bookmark and Share
 

Legal Updates

Employers’ Experience Under New NLRB Election Rules Highlights Need For Preparation

The new “ambush” election rules implemented by the National Labor Relations Board (“NLRB” or the “Board”) this past April have already proved to be a boon to unions seeking to organize employees. Under the new rules, unions have filed an increased number of election petitions, and the median length of election campaigns has decreased substantially, making it much more difficult for employers to communicate their campaign messages to employees.

As the new election rules give unions numerous advantages that they have never previously enjoyed, it is vital that employers develop union campaign strategies and communications now – even before learning of any actual organizing activity at their facilities.

“Ambush” Election Rules

The new rules, which the NLRB adopted as of April 14, 2015, have been termed the “ambush” election rules, as they dramatically reduce the time between a union’s petition for an election and the election itself.

The challenges employers face under the new rules include the following:

Fast-Track Timeline. Most significantly, the new rules permit an election to be scheduled for as soon as ten days after an election petition is filed. Previously, the typical length of time between the filing of a petition and the election was approximately five to six weeks.

Posting Requirement. Upon receipt of a union’s representation petition, the NLRB sends the employer a Notice of Petition for Election, which must be posted in the workplace within two business days. The notice provides information about employees’ rights to organize under federal law. Employers that use e-mail to communicate with employees also must distribute the notice electronically. Thus, almost immediately after learning of an election petition, an employer is forced to post a notice that can readily be interpreted as encouraging employees to vote in favor of unionization.

New Voter List Requirements. Within two business days after an election is scheduled, the employer must provide a voter list to the union. The list must include not only the names and home addresses of all employees in the petitioned-for unit, but also their personal phone numbers and e-mail addresses. (The prior rules required employers to provide only names and home addresses, and gave employers seven days to do so.) As a result, virtually from the outset of a campaign, a union can inundate employees with pro-unionization messages.

Pre-Election Hearing. If an employer opts to challenge the appropriateness of an election petition, a pre-election hearing is scheduled for eight days after the petition is filed. Thereafter, within seven days, the employer must file a detailed position statement raising all potential challenges to the petition. The employer will be deemed to have waived any challenge not raised in the position statement. Obviously, these extremely short timeframes create enormous challenges for employers.

Deferral Of Certain Challenges Until After The Election. Litigation over the inclusion of specific employees in the bargaining unit or their eligibility to vote is generally deferred until after the election, as such issues could be mooted by the election results (e.g., if the union were to win by a large margin, the disputed ballots might be too few in number to change the result). Under the former election rules, employers were entitled to litigate voter eligibility and inclusion issues prior to the election.

Elimination Of Right To Submit Legal Briefs. After a pre-election hearing, the employer may not submit a written brief unless the NLRB’s Regional Director deems it “necessary.” Under the prior rules, an employer had a right to file a written brief. Thus, employers have been deprived of an important avenue for arguing their position on election issues.

Elimination Of Automatic Stay Of Election. Finally, representation elections are no longer stayed until 25 to 30 days following the Regional Director’s ruling on the issues presented at a pre-election hearing. Previously, elections were routinely stayed to allow the Board to consider a potential request for review of the Regional Director’s decision.

Employers’ Experience Under New Rules

Although the “ambush” election rules have been in place for only a matter of months, available information suggests that they have already begun to tilt the playing field in unions’ favor, just as employers had feared.

For instance, NLRB statistics indicate that the median time period between the filing of an election petition and the actual election has decreased from 38 days to 23 days. In other words, employers have lost more than two weeks of time to communicate their messages to employees. Further, since the 23-day figure is a median number, in a full 50 percent of recent elections, employers have had even less time than that to campaign.

Not surprisingly, the new rules also appear to have sparked a greater number of election petitions by unions. During the first month after the rule changes went into effect, 266 union certification petitions were filed with the NLRB – an increase of 24 percent from the previous five years’ average for the same time period.

Finally, in more than 98 percent of election cases since the new rules were implemented, the employer has entered into a stipulated election agreement – i.e., an agreement to waive any challenges to the petition and set an election date – rather than undertaking the intense, expedited process required to challenge an election petition. Previously, only about 80 percent of election petitions resulted in stipulated election agreements. Presumably, employers have concluded that with the scant campaign time available under the new rules, they cannot afford for the initial part of that short period to be consumed by a legal challenge to a petition.

Unsuccessful Court Challenges

While employer groups filed two federal lawsuits aimed at stopping the NLRB from implementing the new election rules, those legal challenges have proved unsuccessful.

In one of those cases, a federal district court in Texas dismissed a lawsuit challenging the new rules as, in part, a violation of employers’ rights under the National Labor Relations Act, the Administrative Procedure Act, and the U.S. Constitution. That decision has been appealed to the U.S. Court of Appeals for the Fifth Circuit.

In the other lawsuit, a federal district court judge in Washington, D.C., recently granted summary judgment to the Board on a similar challenge to the new election rules lodged by other employer groups. That decision, as well, is being appealed.

At least for the foreseeable future, then, it appears that employers will have to accommodate themselves to the “ambush” election rules as best they can.

Recommendations

In light of the major challenges created by the NLRB’s new election rules, it is vital that employers that wish to remain union-free take immediate steps to prepare for a potential union organizing campaign and election. In particular, employers should consider the following measures:

  • Take stock of possible issues that may lead employees to explore unionizing – such as substandard wages or benefits, poor working conditions, or abrasive relationships with supervisors – and consider whether changes may be warranted. (Note, however, that it is generally unlawful for an employer to change, or promise to change, wages, hours, or working conditions after organizing activity begins.)
  • Train managers and human resources personnel in how to respond lawfully to union organizing activity – and how to avoid unlawful knee-jerk reactions that may expose an employer to liability under federal labor law.
  • Prepare union campaign strategies and communications now, as there will be little time to act after an election petition is filed.

* * * * *

Please let us know if you have any questions about the NLRB’s “ambush” election rules, or if you may need assistance in preparing for actual or potential union organizing at your facility.