Barring a last minute surprise (and this writer is not betting on anything), the National Labor Relations Board’s new union representation case rules will take effect April 14. Capping a lengthy campaign to revamp the process by which manufacturers (and other employers) may be compelled to recognize and bargain with unions, the NLRB’s new rules substantially change the way union election campaigns will be conducted.
In preparation for the April 14 effective date, the NLRB’s General Counsel is expected to issue a comprehensive guidance memo to assist practitioners and the NLRB’s regional officers have been offering training programs to those who regularly practice before the Board.
Highlights of Major Changes
The new election rules “modernize” and shorten the entire representation election process. An NLRB chart comparing the new and old rules can be found here.
Among other things, the NLRB’s new election rules provide:
- Electronic filing and service of election petitions and forms;
- Mandatory posting of pre-election notices within two (2) business days of filing;
- Mandatory electronic notices to all employees if the employer sends other notices to its employees electronically;
- Automatic scheduling of pre-election hearings for a date within eight (8) days of the initial filing, which can be adjourned for a maximum of two (2) additional days;
- Waiver of right to contest most issues unless the employer files a Statement of Position by 12 noon, local time one business day prior to the pre-election hearing;
- Limited litigation of issues at the pre-election hearing – limiting issues to fundamental questions concerning representation and the NLRB’s statutory jurisdiction, and deferring all eligibility issues pending the outcome of the election;
- Limited right to appeal issues to the full NLRB in Washington, which will grant review only in limited circumstances;
- New Voter Eligibility List mandate, requiring employers to provide in electronic format an alphabetic and sortable list of eligible employees and their full names, work locations, shifts, home and personal telephone numbers, and personal email accounts;
- Post-election objections challenging the fairness of the election, along with all supporting evidence or offers of proof, must be filed within seven (7) days of the election;
- Post-election objections hearing (if warranted) to be held within 21 days of the election;
- Limited right to challenge decision following hearing on election objections.
Implications of Revised Rules
While electronic filing and requiring that manufacturers use corporate email systems to communicate government postings both represent major changes in case processing, the biggest impact on manufacturers with be the shortening of the time period between the initial petition and the election hearing, the date of the election, and the deadline for filing evidence in support of election objections.
The new procedures and time-lines, as a practical matter, require manufacturers to be “on their toes.” If a union electronically files an election petition late on Friday afternoon (sending a copy to the employer by fax or email), the representation hearing will be held one week from the following Monday. To the extent that the notice of the representation petition gets sent to an unmonitored general email account or the account of a senior leader on vacation or in the hospital, a company may not even learn of the filing until a day or two before the hearing. The new rules also mandate that employers file a pre-hearing Statement of Position by noon one business day prior to the hearing. If the hearing is to be held on Monday (following the election petition filed the previous Friday), the Position Statement is due at noon on the Friday before the hearing – less than five business days after the petition was filed. Failure to file a Statement of Position precludes the company from introducing evidence, calling witnesses or cross-examining adverse witnesses on most issues. Even under the best of conditions a company may be hard pressed to determine what issues to contest and organize a defense in five business days. If the petition gets filed on a Friday, an employer which waits the weekend to call its legal counsel has effectively used one-quarter of its time doing nothing.
Equally challenging, following a representation election, an employer will have a total of seven days (including weekends and holidays) to file both election objections and any evidence in support of election objections. Again, failure to meet the deadline precludes an employer from contesting the election.
It seems inevitable that the combined effect of these changes will be to shorten the time period for an employer to present its message to employees. Nationally, the median time between the filing of a representation petition and an election is 38 days. Under the new rules, an election can be ordered to take place within 22 days after the petition gets filed and, if the union waives its right to the Voter Eligibility List, the election can be held in as little as 15 days after the petition gets filed.
Only time will tell whether the NLRB will have the manpower and resources to meet the aggressive time-tables set out in the new rules. One thing seems certain, 2015 promises to be a year when the traditional labor practitioner better not make any non-refundable vacation plans!