Ambushed: The NLRB’s New Election Rules Make Life More Difficult for Employers

Dec 16, 2015

After years of discussion and much opposition from employer interests, the so-called “ambush” union election rules of the National Labor Relations Board (NLRB) have been in effect since April 2015. The NLRB’s view, as expressed in the rulemaking process, is that the new rules will reduce unnecessary delay and take advantage of the realities of modern communication technology. The actual parties to elections have given a less high-minded gloss to the changes, with unions arguing that the new rules will impede employers”™ ability to stall elections, and employers characterizing the updates as a clear effort to tilt the playing field in unions”™ favor in light of long-term declines in union membership.

Regardless of the motives behind their passage, the new rules dramatically change the union election process. From an employer’s perspective, the new rules disadvantage employers by both shortening the pre-election period and by imposing numerous additional procedural requirements on the employer in that shortened time period. While volumes could be written about the various aspects of the new NLRB election rules, this article is intended to provide a brief overview of what the new rules change, what the changes”™ impact has been to date, and what steps employers should take to adjust to life under the new rules.

What’s New Under the New NLRB Election Rules?

Key provisions of the new NLRB union election rules include the following.

Electronic service of a petition allowed and eliminates delays based on mailing: The new rules allow for service of petitions via email. Some commentators have noted that the new NLRB rules appear to be silent on precisely to whom with the employer’s organization such a petition would need to be emailed, raising the prospect that the emailed petition could be misdirected or otherwise not reach its intended recipient due to the vagaries of technology. Regardless of whether this particular risk materializes, electronic filing has the potential to speed elections because formerly a petitioner submitted its petition to the NLRB, and the NLRB would then notify the employer.

Now, because a petitioner can electronically submit its election petition to the NLRB and the employer simultaneously, the NLRB could electronically issue a Notice of Petition and Notice of Hearing the same day as the petition is filed. The NLRB’s Notice of Hearing will set a hearing date that is 8 days after service of the Notice of Hearing (the NLRB may continue the hearing for up to 2 days for “special” circumstances or more than 2 days for “extraordinary circumstances).

The Formerly Voluntary Notice of Petition for Election is Now Mandatory: Under the old rules, an employer had the option to post a Notice of Petition for Election but was not required to do so. Now the employer must post a Notice of Petition for Election within two (2) business days of receiving the Notice of Petition and Notice of Hearing from the NLRB. The employer must also circulate the Notice of Petition for Election electronically if it “customarily” communicates with its employees electronically. Failure to follow these requirements can result in the election being set aside.

The Pre-Hearing Position Statement: Come Up With Your Best Arguments Fast, or Lose Them: Under the new rules, an employer must submit its Position Statement by noon on the business day before the hearing, meaning the Position Statement will typically be due on noon of the seventh day after the NLRB’s Notice of Hearing is served. The employer’s Position Statement must do the following:

  • Address any issues relating to the appropriateness of the proposed bargaining unit, including any positions that the employer believes should not be included in the proposed unit, or any positions that the employer submits as appropriate for the proposed unit.
  • As part of its Statement of Position, the employer must provide a list of prospective voters with their job classifications, shifts and work locations, to the NLRB’s regional office and the other parties.
  • Additionally, the employer must identify any individuals whose eligibility to vote the employer intends to contest at the pre-election hearing and the basis of each such contention;
  • Raise any election bar;
  • State the length of the payroll period for employees in the proposed unit and the most recent payroll period ending date;
  • State the employer’s position concerning the type, date(s), time(s), and location(s) of the election and the eligibility period; and,
  • Describe all other issues the employer intends to raise at the hearing. Critically, an employer will be precluded from raising at the pre-election hearing any issue that it does not raise in its Position Statement.[1]

Pre-Election Hearings Are Streamlined and No Post-Hearing Briefing is Allowed: The new rules provide that disputes over individual employee’s eligibility to vote or inclusion in a bargaining unit “ordinarily need not be litigated or resolved before an election is conducted.” The purpose of this change is to prevent hearings from being extended by litigation over so-called “collateral” issues such as whether small numbers of individual employees should be in the proposed bargaining unit. For good or ill, the NLRB’s rationale for the change is that often such small numbers of employees are not outcome determinative and thus do not merit the delay in hearing time that addressing them necessitates.

Additionally, rather than allowing post-hearing briefs, the NLRB will now allow oral argument but will not allow post-hearing briefing unless the NLRB regional director determines briefs are necessary.

Post-Hearing Proceedings: unlike the process under the prior rules, a request for Board review of the regional director’s decision and director of election (“DDE”) does not automatically stay an election.  Additionally, the new rules eliminate the mandatory 25-day waiting period between the DDE and election, which was intended to allow resolution of requests for review prior to an election.

The Voter List Requirement (a/k/a an Excelsior list) is More Onerous and Has Already Been Shown to Be A Problem Area for Employers: Previously, the Excelsior list had to be filed within 7 days of the regional director’s DDE and had to include only names and home addresses of eligible voters. Now, however, an employer must file its Excelsior list within 2 days of the DDE, and the list must contain full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal mobile telephone numbers) of all eligible voters.

A recent NLRB case illustrates the risks imposed by this new, more extensive voter list requirement. In Danbury Hospital, Case 01-RC-153086 (October 16, 2015), the union sought to represent a unit of non-professional employees at the employer hospital. After the parties entered into a stipulated agreement to hold the election, the hospital provided a list of 866 eligible voters. The employer provided a home address for all 866 eligible voters on the list and provided a telephone number for 814 of the 866, or just under 94 percent. In the subsequent election, 85 percent of eligible voters voted, and the union lost the election, 390 to 346, or approximately 53 percent to 47 percent.

After the union lost the election, it filed an objection alleging that the lack of voter information was cause to set aside the election and conduct it anew, an objection that the hearing officer sustained. The employer contended it had substantially complied with its obligations under the new rules by providing information available from its human resources database, but the regional director affirmed the hearing officer’s rejection of this argument because the employer had not searched other hospital databases, such as an internal job applicant tracking system, or non-electronic sources. The regional director also affirmed the hearing officer’s refusal to consider any argument that the organizing effort had not been prejudiced by the alleged failure to comply with the new rules. At the time of this writing, the employer had pending its request for review of the regional director’s decision and its request to stay the conduct of a second election.

NLRB Now Allows E-Signatures for Showing of Interest in Union

In September 2015, the NLRB general counsel issued Memorandum GC 15-08 (subsequently revised on October 26, 2015), explaining the NLRB’s decision to accept electronic signatures in support of union petitions and providing guidance to regional directors on how to carry out that decision. Interestingly, in issuing the guidance, the NLRB had determined that its existing regulations were sufficient to provide for this change in practice. Thus, while the NLRB’s move to accept e-signatures for showing of interest was not technically part of the rules updates, it was clearly related to the NLRB’s efforts to remove hurdles to unionizing. The NLRB general counsel’s memo does set out a number of specific requirements for the acceptance of electronic signatures in an effort to address any potential concerns regarding fraud or forgery.

What Has the Impact of the New NLRB Rules Been?

While the new NLRB rules have been in effect less than a year, some trend lines are clear. As expected, the new NLRB elections are resulting in union elections taking place more quickly after a petition is filed. According to one analysis published in August 2015 in the Wall Street Journal, the median time for the 20 contested elections between April and July 2015 was 25 days from petition filing to election, down substantially from the median of 59 days for 2014, the last full year under the former rules.

Conclusion – What Can An Employer Do?

Decide the key players in advance: An employer should decide in advance who will be on the team, both internally and externally, in responding to an election petition. Outside counsel for such labor relations matters should be engaged in advance, because an employer will not have sufficient time after the petition process has begun to both consider counsel, get them up to speed on the employer’s issues, and prepare for an election. Given the compressed schedule once a petition is filed, an employer’s team will need to be working in unison from the first day, if not before, and will not be able to lose time addressing internal administrative matters.

Conduct supervisor training now, not later: Given the speed with which a petition can now proceed to election, supervisors must be training in spotting signs of union organizing and also how to interact with employees on unionizing issues without running afoul of the law.

Collect the “low hanging fruit” by reviewing and revising any existing policies or procedures that may conflict with current NLRB law: If an employer has not recently revised its employment policies, including its employee handbook, it likely has policies that could conflict with recent NLRB cases, including cases taking an expansive view of employees”™ Section 7 rights on social media.

Conduct analysis – and counter-analysis – on possible bargaining units: If an employer has reason to believe a union organizing effort may be imminent, it goes without saying that the employer should give consideration to what it thinks would be an appropriate bargaining unit, and the reasons why such a unit would be appropriate. Similarly, the employer should develop its arguments why a union’s preferred bargaining unit is inappropriate if it has reason to believe an inappropriate unit would be proposed. Having these arguments fully developed in advance is critical given the compressed time election time frame under the new rules.

Develop employee contact lists and keep them up to date: In light of the risk of having a favorable election overturned, as in the Danbury Hospital case, employers must develop procedures for keeping lists of eligible voter employees and ensuring that the information remains updated. Opinions vary on whether providing additional information to unions, such as mobile phone numbers or personal email addresses, will have an actual impact on the outcome of a union election. However, it is more clear that if an employer cannot show that it has satisfied its obligation to search for and turn over the contact information that it has under the new rules, a subsequent objection to the conduct of the election could be sustained.

Consider any other steps to develop factual and legal positions before a petition is filed: By the time a petition is filed, union organizing efforts will have been underway for months. Thus, under the new rules, an employer will be more than ever at a serious disadvantage if it is considering its factual and legal defenses for the first time after the petition is actually filed. While a pre-formed response to union organizing efforts will not guarantee a favorable result for an employer, it will dramatically increase the odds of an employer getting the best possible result.

Kameron Murphy is an associate with Tueth Keeney Cooper Mohan & Jackstadt P.C. and focuses his practice on representing management in labor and employment matters.

[1] “The non-petitioning parties will be required to respond to the petition and state their positions generally the day before the pre-election  hearing opens.  The petitioner will be required to respond to the issues raised by the non-petitioning parties at the opening of the hearing.  Litigation inconsistent with the positions taken by the parties will generally not be allowed.” See,