NLRB’s Impending Rule Changes Regarding Union Representation Elections

Following President Obama’s veto of a Congressional resolution, the National Labor Relations Board’s (NLRB) rules and regulations about procedures for handling union representation elections will change effective April 14, 2015.

The rule changes, in most cases, will significantly shorten the time between the filing of union election petitions and election dates. Currently, elections happen six to seven weeks after a petition is filed. Under the new rules, an election could take place as soon as three weeks after a union files a petition.

A summary of the changes to the regulations that will most impact employers follows:

• Employers Must Post Initial Notice of a Petition Filing – When a union files a petition for an election, the NLRB will send to employers, usually by fax, a packet of information that will include a required notice to be posted telling employees about the petition. The employer must post the notice within two business days of receiving the petition from the NLRB. Failure to post the notice could result in an election that the employer wins being set aside.
• Hearing Scheduled Eight Days After Filing – The new rules mandate that the NLRB schedule a hearing within eight days after a union files a petition. If parties wish to enter into an agreement on the election details, that must happen before the hearing. Because of this and other shortened time periods in the new rules, it is possible that more employers will choose to go to a hearing instead of entering into election agreements so that they may have more time to communicate with employees about union organizing.
• Written Statement of Position Required – Employers must give the NLRB and the union their written position about the scope of the employee group a union wants to have vote by noon the day before a hearing starts and provide a detailed description of any group the employer thinks is more appropriate. If the employer does not provide this information, it will not have the right to challenge the union’s position or put on relevant evidence regarding unit scope at any hearing.
• Employers Must Provide Potential Voter Data to NLRB and Union – The NLRB currently asks employers for a list of names and job titles of employees covered by the union’s petition. The new rules require that employers give the NLRB and the union a more extensive list, with names, shifts, work locations and classifications of employees in the group the union petitioned for and a similar list for employees in any group the employer claims is more appropriate.
• Truncated Hearings – A hearing will happen only if there are genuine issues of material fact in dispute, such as whether or not employees in the proposed voting unit have common interests, or whether certain employees may be ineligible because they are supervisors. If a hearing officer determines that the number of employees in dispute is less than 20% of the voting unit, he or she will end the hearing and the employees in dispute will vote subject to challenge. Parties will be permitted to make oral arguments at the end of a hearing, but will not be permitted to file briefs without special permission from the hearing officer.
• Quick Direction of Election – Regional Directors will have authority to order an election as soon as is “practicable” after the hearing. If there are employees whose eligibility is in dispute, the notice will have to explain that those employees may vote subject to challenge. This is likely to make election notices confusing to employees. Under the old rules, elections were scheduled 25 to 30 days after a decision and direction of election. This period is eliminated in the new rules. In addition, employers will no longer have the right to ask for review of a Regional Director’s decision before an election – all requests for review must occur after an election.
• Less Time to Provide Employee Contact Information to Union – The previous rules required employers to send the NLRB a list of the names and addresses of eligible voters seven days after the direction of election or approval of an election agreement. The new rules require that employers electronically provide that list two days after an election is ordered or an election agreement is approved to both the union and the NLRB at the same time. The list must be an alphabetical list of all eligible voters. It must include employees’ names, home addresses, available personal e-mail addresses and available home and cell phone numbers, work locations, shifts and classifications. Note: Employers will only have to provide information that it has, so if an employer does not have employees’ cell phone numbers or personal e-mail addresses it will not have to provide that information. The NLRB requires at least ten days between the date that the employee list must be provided and the date of an election. Although this standard does not change in the new rules, the date that lists must be provided will be earlier, so elections will happen sooner.
• Electronic Notice to Employees – Employers have always been required to post a notice of the election in the workplace the last two days before the election. The new rules change that posting requirement to the last three days before the election and also require employers who regularly communicate with employees by e-mail or other electronic means to provide the election notice in that manner also.
• Truncated Objection Procedures – If an employer or union wants to file an objection to the conduct of an election or something the other party did during the election campaign, it must do this no more than seven days after the election (which is the current rule), but under the new rules they must also include a written description of the evidence they will submit in support of objections. If a Regional Director decides to hold a hearing on objections, it will be scheduled within 21 days of the date the votes were counted.

The NLRB’s new election rules will shorten the time between when a union petitions for an election and when an election happens. They will also result in unions getting significantly more data about voters and getting that data earlier in the process. Employers will have much less time to educate and communicate with employees about the negatives involved with having a union and to counter union campaign propaganda.

Most importantly, these changes make it very important that employers be familiar with and exercise all possible rights to challenge union petitions. These changes also make it important for employers to have proactive discussions with employees about unions and union organizing before organizing starts. Attorneys in Stevens & Lee’s Labor and Employment Department are highly experienced in all these areas and can help you devise a proactive strategy and, if necessary, effectively respond and react if a union files an election petition for your employees.

For More Information

If you have any questions regarding this Client Alert, please contact Joseph P. Hofmann at 717.399.6643 or the Stevens & Lee attorney with whom you normally consult for labor and employment issues.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.