United States: Healthcare Legal Alert: The Full Quorum Strikes Back - NLRB's Ambush Election Rules Revived

Executive Summary:  With a full quorum of Board members and a 3-to-2 political majority in the Democrats' favor, the National Labor Relations Board (NLRB) has resurrected proposed rule changes that would drastically affect future representation elections and hamstring an employer's ability to defend against a petitioning union.

Background

In June 2011, the Board proposed election rule amendments that would:

  • allow for electronic filing and transmission of election petitions and other documents;
  • ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
  • streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
  • include telephone numbers and e-mail addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
  • consolidate all election-related appeals to the Board into a single post-election appeals process.

The Board received over 65,000 written comments from interested parties regarding these proposed rules and held hearings to discuss the various concerns raised by the comments. While labor advocates universally lauded the proposals, industry representatives criticized the drastically reduced election time frames, fewer avenues for appeal of election issues, and increased discretion the Regional Director and the Board would hold when deciding pre- and post-election controversies.

As the end of 2011 approached along with the expiration of Member Becker's term, and facing the prospects of a paralyzed Board consisting only of Chairman Pearce and Member Hayes, Pearce and Becker voted to implement a portion of the proposed rules. Hayes did not participate in the vote. Subsequently, a federal trial court in the District of Columbia found that Hayes' non-participation was enough to scuttle the vote on lack-of-quorum grounds, causing the Board to pull their new rules off the table.  For more information on the court's decision, please see our May 16, 2012 Legal Alert, Court Invalidates Ambush Election Rule; Board Suspends Implementation.  

The Bad Penny Returns

The proposed rules were gone, but not forgotten.  Last week, with all Board quorum issues resolved by the presence of five Senate-confirmed members, Pearce seized the opportunity to resurrect the full gamut of rules proposed in June 2011.  In a press release issued February 5, 2014, the Board announced that it was issuing proposed amendments to its rules governing representation case procedures that, in substance, "are identical to the representation procedure changes first proposed in June of 2011."  See The National Labor Relations Board Proposes Amendments to Improve Representation Case Procedures.

While the proposed election rules contain many drawbacks for employers, one of the most significant concerns is the newfound swiftness of the election process. The proposed rules will speed up the election process in no small part by curtailing the employer's rights to challenge the units proposed by the union.

The proposed rules require all pre-election issues to be set out in a position statement presented to the hearing officer at the outset of a pre-election hearing, which would take place within seven days from the date of service of the notice of hearing.  Any issues not addressed in that position statement are deemed waived. Only issues relevant to a question of representation and/or questions of "unit scope" will be handled at a pre-election hearing, and then only if the questions involve 20 percent of the bargaining unit. Full litigation of all eligibility issues prior to the direction of an election will no longer be the standard.

This expedited pre-election procedure presents a particular problem for employers who wish to challenge the appropriateness of a petitioned-for unit.  Under the Board's decision in Specialty Healthcare, which was affirmed by the Sixth Circuit, a union need only show that the employees in a proposed unit share a community of interest relative to department organization, skills and training, job functions and work, functional integration, contact with other employees, interchange with other employees, terms and conditions of employment, and supervision (see United Operations, Inc., 338 N.L.R.B. 123, 2002). If a union meets this burden then the unit will be found appropriate unless the employer proves that excluded employees share an overwhelming community of interest with employees in the unit, and shows that there is no legitimate reason to exclude those other employees from the unit.  For a discussion of this decision, please see our August 19, 2013 Legal Alert, 6th Circuit Affirms NLRB, Requires "Overwhelming Community of Interest" To Challenge Bargaining Units.

A union could spend months trying to organize employees without an employer's knowledge, all the while determining which employees would provide the best chance for a successful election. While the Board is not permitted to consider the extent of union organization as the "controlling factor" in determining whether a unit is appropriate, in reality this remains the most significant factor, as the petitioned-for unit is always a hand-picked collection of pro-union employees. After an election petition is filed, an employer will have between seven and 14 days to assess the union's cherry-picked unit to determine if the unit shares a community of interest, and if any excluded employees share an overwhelming community of interest with those in the unit. An unprepared employer simply does not have enough time to complete this significant task.

Employers' Bottom Line:

Abraham Lincoln once said, "Give me six hours to chop down a tree and I will spend the first four hours sharpening the axe."  The NLRB's proposed rules would give Abe three hours to chop down that tree – Abe better have an axe sharpened in advance. There is no doubt that employers must be well prepared in order to survive in a world of ambush "quickie" elections.  Employers must remain vigilant for any workplace issues that may cause employee unrest and work to resolve those issues before the employees consider unionization. Employers should also examine the composition and structure of their workforce, and take steps to provide for similar working conditions, cross-training and sharing of employees among departments, and a common supervisor and management structure – essentially creating an "appropriate unit" comprised of all employees before a union tries to carve out a micro-unit sympathetic to organized labor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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