This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.
The National Labor Relations Board (NLRB) is at it again. Unions are already winning close to 70% of NLRB-conducted elections. NLRB elections are already conducted quite promptly, with the median processing time being about 38 days from date of petition filing to date of election. Nevertheless the three Democrat Members of the NLRB have apparently concluded that organized labor needs additional governmental assistance in unionizing the unorganized workforce.
Over the vehement dissent of the two Republican Members, the Board Majority, on December 15, 2014, issued its Final Rule amending election procedures in what most observers are calling the "Quickie Election" Rule. Thankfully the Rule does not actually go into effect until April 14, 2015, as it is 733 pages in length and will therefore require substantial time just to wade through. But the implications of the Rule are starkly clear – effective April 14, elections will be held approximately 10 to 21 days after a union election petition has been filed – with profound consequences for non-union employers.
First, if this all sounds familiar, it should. The Board first issued an almost identical Rule in 2011, but it was invalidated by a federal court because the Board lacked a proper quorum when it had voted to adopt the Rule. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp 2d 18 (D.D.C. 2012).
Undeterred by this setback, the Board proposed virtually the same Rule in February 2014, and has now adopted it, despite an overwhelmingly negative reception by employers and trade associations. The new Rule is every bit as pro-union as the original 2011 Rule, and in some ways is even more stringent in addressing what the Majority determined to be shortcomings and inequities existing under current procedures.
What are some of the major changes promulgated under the new Final Rule? They will be addressed below, but collectively, they will operate to dramatically shorten the period of time from the date the election petition is filed to the date the election is conducted. That time period is particularly critical for employers, because it is often the only time the employer will get to express its views on unionization. An organizing effort may have been ongoing for weeks or months without the employer's knowledge, with the employer only learning about it when it is served with the election petition. A dramatically shortened time period prior to the date of the election necessarily deprives employers of the time needed to fairly present both sides of the representation question to employees.
Among the changes in the Final Rule are the following:
- The employer, upon receipt of the petition will have just two business days in which to post a "Notice of Petition for Election" and distribute it electronically to employees. The Notice references various employer conduct which, if committed, would constitute unfair labor practices. Failure to comply with this posting requirement, inadvertent or otherwise, will constitute grounds to set aside the results of the election if the employer wins.
- The employer will have seven days from date of service of petition to file with NLRB and serve on the union a "Statement of Position" regarding any issues it plans on raising at the pre-election hearing, and failure to raise an issue in the Statement will preclude the employer from litigating the issue at the pre-election hearing.
- Pre-election hearings will be held precisely eight days after the petition is served, but unlike present procedures, there will be no litigation of individual employee eligibility to vote or inclusion in the bargaining unit, with such issues being deferred to the post-election challenge procedure. This provision is particularly onerous to employers, as it is likely to prevent the employer from litigating the supervisory status of individuals, thereby making it more difficult for the employer to know which individuals it can rely on as company representatives during the election campaign.
- Under current procedures, post-hearing briefs can be filed seven days after the hearing. Under the Final Rule, such briefs will no longer be entertained, resulting in less time for the Board's Regional Director to consider the issues and less time until the issuance of a Decision and Direction of Election.
- Employers will now be required to provide to the Board and to the union expanded personal information about employees, to include not only names and home addresses (per present procedures) but now also home telephone number, personal cell phone number and e-mail address if known by the employer, work location, shift, and job classification. All of this of course is to enhance the union's ability to contact employees for pre-election campaigning purposes.
The above are only some of the changes, with others including eliminating the right to seek pre-election review of a Regional Director's Decision by the Board, eliminating the current 25 day waiting period to conduct elections after the issuance of a Decision and Direction of Election, and expediting of any post-election objections. The bottom line, of course, is that effective April 14, 2015, it will be easier than ever before for unions to unionize the presently unorganized.
What should employers be doing now to prepare for implementation of the Final Rule? Some suggestions below:
- Unless you believe you are virtually invulnerable to a union organizing effort, you should not remain idle. If and when an election petition is filed, there may be too little time to do too much.
- Consider conducting union avoidance training for managers and supervisors now, before the Final Rule becomes effective.
- Honestly consider whether your organization is susceptible to a union organizing effort. If it is, perhaps you should be analyzing potential bargaining unit issues, reviewing company policies (such as solicitation and use of electronic resources), determine who is likely to be considered supervisory and who is not, compose a company response team which can promptly address union organizing efforts, etc.
These are but a few of the proactive steps that all non-union entities should be considering in light of the Board's adoption of its Quickie Election Rule. If you have questions, concerns, or would like further assistance, please contact the undersigned or your usual McNees attorney contact.