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December 22, 2014

NLRB Finalizes New Union Election Process

The National Labor Relations Board (“Board”) has finalized its highly-anticipated rule that overhauls the procedure for union representation elections (the “Final Rule”).  The Final Rule takes effect on April 14, 2015. 

Background Regarding Representation Procedures and the Final Rule

Representation petitions are filed by employees, unions and employers seeking to have the Board conduct an election to determine if employees wish to be represented by a particular union for the purposes of collective bargaining.  If the employer does not voluntarily recognize the union, the Board conducts an investigation to determine if there is a sufficient showing of interest and whether the unit sought is an appropriate one.  The Board then schedules, conducts and oversees a secret ballot election.  The Final Rule significantly streamlines and standardizes Board procedures regarding elections and hastens the election process.  In addition, the Final Rule requires that employers provide more complete information to the union (and in some cases the Board), and much earlier than the current procedure.  It also modernizes the election process, providing for electronic filing and transmission of election petitions and other documents. 

Key Changes to Representation Procedures

The key changes resulting from the Final Rule include:

  • A compressed election period of approximately13-21 days (down from an average of 38-42 days).
  • A new requirement that employers post a Notice of Petition, and in some cases send it to all affected employees, within two (2) business days after the Board serves the employer with the notice.
  • The pre-election hearing will now be scheduled within 8 days from service of the Notice of Petition, absent “special circumstances.”
  • Parties will no longer be permitted to submit post-hearing briefs, unless specifically authorized by the Regional Director.
  • Parties will now be required to submit pre-hearing statements of position regarding the scope and composition of the voting unit by noon of the business day before the pre-election hearing, or will be deemed to have waived any objections to the proposed unit.
  • The employer must now provide the union with the name, job classification, work location, and work shift of all employees in the petitioned-for unit by noon on the last business day before the pre-election hearing.
  • Voter eligibility determinations will not be made until after the election.
  • Employers must now provide the so-called “Excelsior list” to both the union and the Board, and not later than 2 business days after the election order.
  • The Excelsior list must now contain not only the name, home address, work location, shift and job classification of voters, but also employees’ phone number (including cell phone number where applicable) and email address.
  • There is no longer a right of review of the election order until after the election.
  • The 25-day delay between the election order and the actual election is eliminated.
  • Election objections and an offer of proof in support of those objections must now be filed within 7 days after the votes are tallied, and any post-election hearing involving objections or challenges must be held, in most cases, within 21 days after the tally.
  • Review of the Regional Director’s decision by the full Board is no longer available as a matter of right.

Board’s Comparison of Current vs. New Procedures

For ease of reference, the Board has published following chart comparing the current and new procedures:

Current procedures

New procedures

Parties cannot electronically file election petitions.  Parties and NLRB regional offices do not electronically transmit certain representation case documents.

Election petitions, election notices and voter lists can be transmitted electronically.  NLRB regional offices can deliver notices and documents electronically, rather than by mail.

The parties and prospective voters receive limited information. 

Parties will receive a more detailed description of the Agency’s representation case procedures, as well as a Statement of Position form, when served with the petition.  The Statement of Position will help parties identify the issues they may want to raise at the pre-election hearing.  A Notice of Petition for Election, which will be served with the Notice of Hearing, will provide employees and the employer with information about the petition and their rights and obligations.  The Notice of Election will provide prospective voters with more detailed information about the voting process. 

The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region.

The Regional Director will generally set a pre-election hearing to begin 8 days after a hearing notice is served and a post-election hearing 14 days after the filing of objections. 

There is no mechanism for requiring parties to identify issues in dispute.

Non-petitioning parties are required to identify any issues they have with the petition, in their Statements of Positions, generally one business day before the pre-election hearing opens.  The petitioner will be required to respond to any issue raised by the non-petitioning parties in their Statements of Positions at the beginning of the hearing.  Litigation inconsistent with these positions will generally not be allowed.  

The employer is not required to share a list of prospective voters with the NLRB’s regional office or the other parties until after the regional director directs an election or approves an election agreement.      

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, generally one business day before the pre-election hearing opens. This will help the parties narrow the issues in dispute at the hearing or enter into an election agreement.

Parties may insist on litigating voter eligibility and inclusion issues that do not have to be resolved in order to determine whether an election should be held.

The purpose of the pre-election hearing is clearly defined and parties will generally litigate only those issues that are necessary to determine whether it is appropriate to conduct an election.  Litigation of a small number of eligibility and inclusion issues that do not have to be decided before the election may be deferred to the post-election stage.  Those issues will often be mooted by the election results.   

 Parties may file a brief within 7 days of the closing of the pre-election hearing, with permissive extensions of 14 days or more. 

Parties will be provided with an opportunity to argue orally before the close of the hearing and written briefs will be allowed only if the regional director determines they are necessary. 

Parties waive their right to challenge the regional director’s pre-election decision if they do not file a request for review before the election.  This requires parties to appeal issues that may be rendered moot by the election results.

Parties may wait to see whether the election results have made the need to file a request for review of the regional director’s pre-election decision unnecessary and they do not waive their right to seek review of that decision if they decide to file their request after the election.  

Elections are delayed 25-30 days to allow the Board to consider any request for review of the regional director’s decision that may be filed.  This is so even though such requests are rarely filed, even more rarely granted and almost never result in a stay of the election.

There will be no automatic stay of an election.

The Board is required to review every aspect of most post-election disputes, regardless of whether any party has objected to it.

The Board is not required to review aspects of post-election regional decisions as to which no party has raised an issue, and may deny review consistent with the discretion it has long exercised in reviewing pre-election rulings. 

 The voter list provided to non-employer parties to enable them to communicate with voters about the election includes only names and home addresses. The employer must submit the list within 7 days of the approval of an election agreement or the regional director’s decision directing an election.

The voter list will also include personal phone numbers and email addresses (if available to the employer).  The employer must submit the list within 2 business days of the regional director’s approval of an election agreement or decision directing an election. 

Take Away for Employers

Many of the changes imposed by the Final Rule put employers facing a union campaign at a severe disadvantage.  Specifically, the shortening of the election campaign, the loss of the ability to contest voter eligibility prior to the election and the loss of the right to have the Regional Director’s decision regarding election challenges reviewed will make it more difficult for employers to fend of organizing efforts.  Employers must also pay careful attention to the new, shorter deadlines for providing certain information.  Given the compressed time periods prescribed by the Final Rule, employers should consider taking proactive steps to effectively combat union organizing efforts.  For example, employers may consider preparing campaign materials and analyze potential voting unit issues, including a comprehensive review of employees in supervisory positions, in advance of receiving a Notice of Petition.  Employers may also consider reviewing, and if necessary revising, their practices to ensure employees are encouraged to communicate directly with the employer if there are issues of concern so that the employees do not feel the need for union representation, and providing additional training to supervisors and managers regarding effective communication.  Finally, employers should ensure that they have complete personal and contact information for each employee to aid in the expeditious preparation of Excelsior lists.

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If you have any questions regarding the Final Rule or related issues, or would like assistance in preparing for an election, please do not hesitate to contact us.