By: Julie A. Reddig
Effective April 14, 2015, new rules went into effect for the union election process that create a “double whammy” for employers. They speed up the election process, making it easier for employees to organize and elect union representation, and they make it much more difficult for employers to challenge the unionization of their workforces. The new rules issued by the National Labor Relations Board (NLRB) do not impact the length of time that a union has to meet with workers and gather a showing of interest, nor do they affect when the union can file a petition for election.
Instead, the new rules speed up the process that follows the union’s filing of the petition for election with the NLRB, substantially limiting an employer’s ability to both communicate with its employees regarding why unionization is not appropriate and to challenge the union’s position regarding the appropriate bargaining unit and employee eligibility with the NLRB.
Below are some of the specific changes to the election rules of which non-union employers should be aware:
- Under the new rules, the petitioner, or the union, provides the employer with the initial notice of the petition of election at the same time that it files with the NLRB. Service of the petition is to be made on the employer in the same manner that it is made on the Board. Thus, if the petition is e-filed with the Board, then it is to be served via e-mail on the employer and the same is true for filings made by fax, so an employer must be aware of these new ways that it may receive notice of a petition of election.
- Under the new rules, upon receipt of the petitioner’s complete petition of election form and all other required supporting documents, the NLRB will issue a hearing notice. This hearing will be set for the eighth day after service of the hearing notice. Thus, the parties will have eight days to either negotiate and enter into an election agreement or prepare for the pre-election hearing. This means that employers must act immediately to retain counsel and begin preparation for the pre-hearing process.
- The hearing notice will set the employer’s statement of position deadline for noon on the business day before the opening of the hearing, essentially giving the employer five to seven-and-one-half days to realize what is happening, find a lawyer who is experienced in dealing with the NLRB, decide – with the lawyer – what is the appropriate bargaining unit, decide on a strategy, and prepare the statement of position. Any issue not included by the employer in the statement of position will be forfeited. As the statement of position must include, among other things, the employer’s position on: the appropriateness of the bargaining unit proposed by the union, the eligibility of voters identified by the union, and the voter list1 (formerly known as the Excelsior list) for the unit proposed by the union, as well as the list of any additional employees whom the employer believes should be added to the voter list, the employer has an extremely limited time frame in which to address these important pre-election issues.
- Under the new rules, the NLRB Regional Directors may defer litigation concerning individual eligibility or inclusion in the bargaining unit that does not significantly change the size or character of the bargaining unit until after the election. Thus, issues of supervisory status, managerial employees, familial relationships, temporary employees, and dual-function employees all may be deferred until after the election, thus allowing these employees to vote under challenge at the election, without knowing whether or not they would be included in the union’s bargaining unit if the union is elected.
- The new rules will allow an election to occur much sooner than under the prior rules. The new standard is the “earliest date practicable” that balances the desires of the parties and operational considerations, along with facilitating employee participation and conducting a prompt and timely election. There is no longer a mandatory waiting period to allow the Board to decide a request for review of the agency’s Decision and Direction of Election. An election could be set for as soon as three working days after either the issuance of the Decision and Direction of Election or the execution of the Election Agreement, as the new rule requires employers to post the notice of election for three full working days (excluding Saturdays, Sundays, and holidays) prior to the day of the election.
- Two days after the issuance of the Decision and Direction of Election or the execution of the Election Agreement, the employer must provide the union with an electronic version of the voter list that now must include personal (but not work) email addresses and home and personal cell phone numbers in the employer’s possession all in addition to the information that was previously required to be provided, such as full names, work locations, shifts, job classifications, and home addresses.
Under the NLRB’s new rules, an election could be held as soon as 10 days after a petition of election is filed, in the case of an Election Agreement, and as soon as 20 days after a petition of election is filed, in the case of a pre-election hearing and issuance of a Decision and Direction of Election. This significantly limits the time employers have to discuss issues with employees and explain the impact of unionizing.
Because of the speed at which elections will proceed under these new rules, employers should provide managers and supervisors with training on how to avoid unions, how to prevent union campaigning, and how to spot union organizing before the petition of election is filed. In addition, employers should educate their employees on the company’s stance on unionization, even before they receive notice that an election petition has been filed. If an employer receives notice of a petition of election from a union, it should contact counsel immediately to assist in the whirlwind that will occur in the upcoming weeks.
Compared with other parts of the country, the Washington, DC metropolitan area has not historically been a stronghold of union strength or unionization efforts, in part because of the prevalence of so-called “white collar” jobs in the region. Unions, however, are looking for ways to expand their bases and are reaching into industries where they have not previously been active, including “white-collar” industries. As a result, the new NLRB rules may well embolden unions – even in the DC metro area – to expand their organizing efforts. Caveat Employers - Employers Beware!
1Employees must be listed by full name, work location, shift, and job classification.
Julie Reddig is an employment attorney at Lerch, Early & Brewer in Bethesda, Maryland who defends management in a broad range of matters and disputes involving employment and the workplace, including unfair labor practice. For more about the new rules issued by the National Labor Relations Board, contact Julie at (301) 961-6099 or jareddig@lerchearly.com.
Lerch Early would like to thank Nida Kanwal for her assistance in researching the content for this article. Nida is a former law clerk at the firm and is a third year law student at the University of Baltimore School of Law.
This article was originally featured in the Lerch Early Employment & Labor Legal Update. To subscribe, visit http://www.lerchearly.com/publications/408-subscribe-now.
