On December 15, 2014, the National Labor Relations Board (“Board”) published its Final Rule governing union elections. The new rule, which will become effective on April 14, 2015, ushers in significant changes to the manner in which the Board handles elections. The Board had attempted to make changes to union election rules in December 2011, but those changes were invalidated for being adopted without a proper quorum.
Under the Final Rule, unions will have an increased advantage in an organizing campaign because, among other things, there will be a dramatically shorter period of time between the filing of a representation petition and an election, making it more difficult for an employer to present its arguments against unionization to its workforce. Below is a list of significant changes under the Final Rule.
• Upon the filing of a petition for a representation election, employers will be required to post and distribute to employees a Board notice regarding the petition and the potential for an election. If an employer also regularly issues communications to its workforce electronically, it must also distribute all election notices to its employees electronically in addition to the hardcopy notices. Before this Final Rule, any such notice was only voluntary on the employer’s part.
• Pre-election hearings must be held within eight days after service of a hearing notice.
• The purpose of the pre-election hearing is to determine if a question of representation exists. A question of representation exists if a proper petition has been filed concerning a unit appropriate for the purpose of collective bargaining or concerning a unit in which an individual or labor organization has been certified or is being currently recognized by the employer as the bargaining representative. Disputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit will not need to be litigated before an election is held. The only issues permitted to be addressed in a pre-election hearing are those necessary to determine whether an election should be held.
• Employers will be required to provide a preliminary voter list at least one day before the start of the pre-election hearing.
• Employers will be required to submit a written Statement of Position one day before the pre-election hearing. If an issue is not addressed in the employer’s position statement, it will be deemed waived.
• Parties will no longer have the right to file post-hearing briefs. Instead, they will be required to request leave to do so. It is anticipated that leave will be infrequently granted.
• The final list of voter eligibility (the so-called Excelsior list) will be required to be produced within two business days after the Region issues its decision and direction of election. The Excelsior list will need to be filed electronically with the NLRB and served on the union. The information in this list has been expanded under the Final Rule to include disclosure of the employee’s name, address, personal cell and home telephone numbers if available, personal email addresses if available, work location, shift, and job classification. The Final Rule did not affect the requirement that the Excelsior list be in the union’s possession for at least 10 days before the holding of an election, unless the union waives the requirement. It is anticipated that unions will be inclined to waive the 10-day period, however.
• There will no longer be an automatic 25-day waiting period between the issuance of a decision and direction of election and the holding of the election.
• A party that files objections to an election must do so within seven days of the tally of ballots and must also submit evidence in support of the objections at the same time the objections are filed. This is a significant departure from the existing rule, which allowed a party to file objections within seven days of the tally of ballots and then take an additional seven days to submit evidence in support of the objections.
• A hearing on the objections, if required, will be held within 21 days from the tally of ballots.
Based on these changes, it is technically possible for an election to be scheduled and held within 13 days of the filing of the petition, provided that the union waives the 10-day Excelsior list period and the Region issues its decision and direction of election the day after the pre-election hearing.
As mentioned above, the Final Rule takes effect on April 14, 2015. Employers should consider taking the following steps now before being faced with a petition and a significantly compressed election timeline.
• Educate the company workforce with respect to the company’s position on unionization.
• Educate employees about the significance of signing authorization cards.
• Conduct surveys to assess the employees’ satisfaction with the terms and conditions of employment.
• Develop a lawful non-solicitation policy if the company does not have one in place.
• Prepare a plan in advance-like a fire safety drill-of how the company will respond in the event of the filing of a petition.
• As part of your advanced plan, identify the roles of different individuals in your organization and their respective responsibilities in executing the plan.
• Assess whether supervisors will be deemed to be Section 2(11) supervisors under the NLRA, and thus excluded from organizing activities.