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Preparing for the Ambush: Getting Ready for the New NLRB Election Rules

March 20, 2015

By Daniel L. Rowan

With the April 14, 2015 effective date fast approaching, we thought employers could use this reminder about the National Labor Relations Board’s new election rules and an update on the challenges to those rules. We will also look at the key changes the new rules will bring, the likely effects of these changes, and some strategic tips to avoid being caught off guard.

Overview of the Election Rules

On April 14, 2015, the NLRB’s new rules governing union representation elections will take effect. Commonly referred to as the “quickie” or “ambush” election rules, the NLRB’s new election rules substantially reduce the time between the filing of a petition with the NLRB and the representation election. The new rules shorten the time between petition and election in at least four important ways:
  1. By eliminating the 25-day waiting period between the direction of an election and the election itself;
  2. By setting a general rule requiring a pre-election hearing within eight days of service of the Notice of Hearing;
  3. By only allowing briefs after the pre-election hearing if the Regional Director deems them necessary; and
  4. By allowing electronic service and transmission of petitions, notices, and voter lists.

The new rules also contain procedural changes that may impact employer strategy after a petition is filed. Among the key procedural changes are:
 
  1. The Regional Director will decide fewer issues at the pre-election hearing;
  2. Failure to raise issues in a position statement prior to the pre-election hearing will preclude a party from making arguments or presenting evidence on those issues; and
  3. Employers must provide employees’ email addresses and telephone numbers in addition to their names and physical addresses once an election is scheduled.

Likely Effects of the Changes

The most obvious effect of the new election rules is that employers have less time to campaign prior to a representation election. According to NLRB Members Philip A. Miscimarra and Harry I. Johnson III (both of whom dissented from the Final Rule), under current rules the average election occurs 38 days after a petition is filed. That will change under the new rules.  We anticipate most elections will occur within 14–21 days of the filing of the petition. Thus, the amount of time an employer has to share its views and provide information that might impact the outcome of an election will be cut in half.

Employers who believe they might be vulnerable to an organizing campaign might want to consider these steps to counter the impact of the shortened election calendar.
 
  • Start a dialog with employees now about the benefits and advantages of a non-union workplace.
  • Train supervisors to recognize signs of potential organizing and instruct them on proper communication with employees.
  • Prepare informational materials and have a plan in place for responding swiftly to a representation petition in the event a petition is filed.

Under the new rules, an employer will have seven days to submit a position statement following the filing of a petition. If the employer fails to raise certain issues in its position statement, including any challenges to the appropriateness of the proposed unit, the employer waives the right to argue these issues or present related evidence at the pre-election hearing. If an employer objects to the appropriateness of the unit, it must indicate the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit. Failure to do so precludes making arguments or presenting evidence regarding the appropriateness of the unit.

The short challenge clock highlights a common complaint that the new rules are operationally contrary to one of the Board’s justifications for the new rules ~ that they will reduce litigation.  In fact, many believe the new rules will lead to more litigation.  Instead of having a reasonable amount of time to analyze and vet legal arguments before the hearing, employers have an incentive to make all possible objections to the representation petition to avoid the preclusive effect of the new rules.

We recommend that employers take several steps in light of  the tight timeline for making appropriate unit objections.
 
  • Employers should analyze their workforces now to identify which groups would and would not be appropriate bargaining units; employers also should keep records that support their analyses on appropriate units.
  • Employers should keep an up-to-date list of employees including full names, work locations, shifts, and job classifications.

Once the Regional Director orders an election, the new rules require the employer to provide the union and the NLRB representative with a voter list. The voter list must include employees contact information, including email addresses and telephone numbers if known to the employer. In an era where personal privacy is under constant attack, employers can assume that some of their employees will not be thrilled to have their personal information disclosed to a union anytime a petition is filed. 
 
  • Inform employees that if a union gains enough support to have an election (30% of the proposed bargaining unit), the union will be able to obtain contact information for all of the employees in the proposed unit.

Current Challenges to the New Rules Unlikely to Prevent Implementation

Readers of Bullard’s Employment Law Edge will recall that earlier this month the Senate voted to nullify the NLRB’s ambush election rules by passing Senate Joint Resolution 8. Yesterday, the House also passed S.J. Res. 8, meaning the new rules will have no effect if the President signs the legislation. However, President Obama supports the NLRB’s new election rules and almost certainly will veto. Because voting on the legislation closely followed party lines, it is unlikely that supporters of the bill could get the 67 votes needed to override the veto and force legislation that would negate the new rules.  
 
In addition to the legislative challenge, there are at least two judicial challenges currently pending.  Specifically, in January 2015 the Chamber of Commerce filed a lawsuit in D.C. District Court challenging the ambush election rules. The case is known as Chamber of Commerce v. NLRB (read the Chamber’s pending summary judgment motion here). Also earlier this year, the Associated Builders and Contractors and the National Federation of Independent Business jointly filed a lawsuit in the Western District of Texas raising similar challenges .

In 2011, the federal courts struck down similar rules promulgated by the NLRB because those rules were not approved by a quorum of the Board. However, the same procedural defect that derailed the 2011 rules is not available in the current lawsuits challenging the rules that are set to go into effect next month. Instead, the plaintiffs have the uphill battle of showing that the new rules are inconsistent with the National Labor Relations Act, the Administrative Procedures Act, and/or the First Amendment. Because of the limited nature of judicial review of administrative rules, we believe it unlikely that the courts will invalidate the new election rules.

Bullard Law Workshop Set for April 1

Regardless of what happens in the legislature and the courts, smart employers will be ready for the new rules when they go into effect on April 14, 2015. To help employers prepare, on April 1, 2015 Dan Rowan and Kent Pearson of Bullard Law present an interactive workshop titled:

ELECTION BY AMBUSH: THE NEW NLRB RULES AND IMMEDIATE STEPS EMPLOYERS SHOULD TAKE 

The workshop will be a high-level discussion about the NLRB election rules. Attendees will hear how these rules dramatically change the landscape of union organizing, will learn about steps to take right now, and will learn how to avoid being ambushed by a quickie election.  Read more about the workshop here.  
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