Tuesday, December 30, 2014

The NLRB's New Quickie Election Rules: How to Handle the Unwelcome Stocking Stuffer

Last week we mentioned the many stocking stuffers the National Labor Relations Board ("NLRB") handed out over the past few weeks in the form of rules and opinions modifying the union-organizing landscape. While unions probably see these changes as shiny new toys, many employers see them as lumps of coal. One such unwelcome stocking stuffer was the final enactment of the new NLRB's "quickie” election rules on December 12. The NLRB final rule modifies the process for union representation elections in a way that streamlines and expedites the process for unions and sets high hurdles for employers.

These rule changes were not unexpected, as the NLRB first introduced them in 2011, received some 50,000-plus comments, and only abandoned them after they were enjoined by federal courts of appeal. In February of 2014, the NLRB re-issued the proposed rule, which left the 2011 proposed rule unchanged.

The NLRB has provided a helpful fact sheet and comparison chart showing the changes to the procedures that will result from the new rule, which becomes effective April 14, 2015. While we don't have space to cover all of the changes, the following are few important points for employers to note:
  • Length: They aren't called "quickie” election rules for nothing. The rules are meant to streamline and expedite the process for employees to elect union representation, from petition to election to post-election litigation. The Wall Street Journal reports that the new rules have been estimated to reduce the average time between petition to election to 25 days or less— substantially less than the 2013 average of 38 days. One specific change to the timeline is that a pre-election hearing generally will be set for eight days after notice of the petition, and, as discussed below, the new rule now requires employers to submit more information prior to that hearing. The shorter timeline makes it far more challenging than ever for an employer to prepare and conduct a reasonable campaign so that its voice can be heard on the unionization question along with the voices of the union. 
  • Employee Information: Two major changes were made to an employer's obligation to provide the union with employee information. First, when the employer provides the required list of prospective voters, it must now include their job classification, shifts, and work locations, within very few days of receiving the petition. Previously, this information was not required until after an election was ordered. Second, in an effort to "bring the representation rules into the twenty-first century," an that the employer must provide (to the union through the NLRB) after an election is ordered (commonly known as the "Excelsior List") must include employees' personal phone numbers and email addresses, if available to the employer, in addition to the home addresses that have long been required under the old rule. Also, this information is also due earlier than in the past—just two days after an election is ordered.
  • Making Challenges: The new rule limits the manner in which the employer may raise challenges during and after an election campaign. First, the employer must submit a "statement of position" identifying any issues the employer has with the petition, generally one business day prior to the pre-election hearing, which is, again, just a few days after the petition jump-starts this entire process. Significantly, subsequent litigation that is inconsistent with these positions will generally not be allowed. And, during the pre-election hearing, litigation will generally be limited to issues that are necessary to a determination of whether an election in the proposed unit of employees is appropriate. Issues involving voter eligibility that formerly would be decided at this early hearing now will generally be deferred until the post-election stage, and will often be mooted by the election results. Additional changes to the process for challenges to voter eligibility are discussed in the NLRB's fact sheet and comparison chart.
So what's the main take-away for employers? BE PREPARED! After implementation of the new rule, it is more important than ever to prepare for possible organizing activity and to respond immediately once a petition is filed. The new rule gives employers a very short window to gather employee information, formulate a position, raise issues, and communicate with employees.
 
We will be discussing this and other issues facing non-unionized employers at a free Breakfast Briefing by our Labor Law Team on January 27th in our Minneapolis office. Click here for more information and to register.

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