United States: New NLRB Election Rules Make It Easier To Unionize

In addition to now permitting employees to use the company email system to unionize, the National Labor Relations Board (NLRB or the Board) amended its election procedure rules last week to make it easier for unions to win elections. The new rules, which become effective April 14, 2015, will streamline the election procedure.

Expanded Voter Eligibility List; Providing Union with Employees' Email Addresses

Perhaps one of the most significant changes will be to the submission of the voter eligibility list to the NLRB by the employer. Currently, the employer must provide the Board and the union with a list of employees it believes are eligible to vote. This eligibility list has been referred to as the Excelsior list, named after the case which created the rule. The rule has been that the employer had to submit and serve the list at least seven days prior to the election. The list currently must contain the employee's name and home address. The purpose has been to provide the union with all of the employee's home addresses so they could communicate with or visit the employees for campaigning.

The new rule will require the employer to provide the eligibility list two days after the Regional Director's approval of an election agreement or a decision directing an election after a hearing. Thus, the eligibility list must be provided much earlier in the process, giving the union more time to contact employees.

In addition to the fast-track submission of the eligibility list, the list must now contain, in addition to name and home address, the employee's email address (if the employer has that information) and the employee's personal phone number (cell phone). Needless to say, this will dramatically increase the union's ability to communicate directly with employees quicker and easier.

Electronic Filing of Petitions and Statement of Position

Many of the new rules are technical, such as permitting electronic filing of petitions with the Board. Currently, when a petition is filed with the Board, the parties only receive a copy of the petition and a short letter describing the process. Under the new rules the Board will issue to the parties, along with a copy of the petition, a Statement of Position form, which must now be completed by the non-petitioning party (typically the employer) to identify any disputed issues prior to an election hearing. This form will require detailed information about the parties and their respective positions as to the petition. In the past, disputed issues would frequently delay the process and, as a result delay the actual election in the workplace. Under the new rule, the hearing will be held only to resolve issues necessary to conduct an election. All other disputed issues which may not affect the outcome of the election will be deferred (such as the eligibility of a small number of individuals) until after the election.

Fast Track Hearings

When the NLRB does conduct a pre-election hearing, the parties previously had the right to file briefs in support of their respective positions. Again, this typically delayed the process and the election. Now, briefs will only be permitted by the Regional Director. The parties will now be limited in most cases to making an oral argument at the end of the hearing.

Notice of Petition; Posting and Electronic Distribution

Along with the Petition and the Statement of Position form, the Board has also issued a Notice of Petition. That is a form that the Board has requested the non-petitioning party (again, typically the employer) to post that Notice. Until this rule change, it was not mandatory. Under the new rules, the Notice of Petition will be issued to the employer and must now be posted and distributed to the employees electronically, if the employer customarily communicates with its employees electronically. The Notice of Petition will inform employees that a petition for an election has been filed and no final decisions have been made regarding the appropriateness of the bargaining unit sought and whether an election will even be held. Failure to post or distribute the Notice may be grounds for setting aside the election.

Additional Information Now Required

In the Statement of Position filed by the employer, it will now be required to provide a list of prospective voters with their job classifications, shifts, and work locations to the Board and the petitioner, prior to the scheduled pre-election hearing. Under the current rules, the employer is only required to provide a list of employees in the proposed bargaining unit.

Notice of Election to be Posted and Distributed Electronically

Presently, once the Regional Director approves an election agreement or issues a decision directing an election after a hearing, the Board will issue a Notice of Election, which contains the details of when and where the election will be held. The employer is required to post that notice. The new rule will require the employer to post the notice, but also to distribute it electronically, if the employer typically communicates with its employees electronically.

New Fast Track Elections

There are numerous other changes that detail and in effect, eliminate procedural delays, including interim appeals to the NLRB in Washington that delay election results. The essence of these new rules is to minimize delays to get to an election and facilitate the union's ability to communicate with employees.

There have been many studies which conclude that the longer the period between the filing of the petition and the election, the greater the chance the employer has to win the election. In most situations, unions will organize employees over a protracted period of time (sometimes many months). If an election is held quickly after a petition is filed, it is more difficult for employers to effectively communicate with its employees to provide them with the numerous reasons why the employees do not need a union.

While the Board has amended many rules to make it easier for unions to organize employees, there is one "unwritten" rule (guidance) regarding the actual timing of the election. Currently, the Board uses an unwritten rule that an election should be held within 42 days (six weeks) of the filing of the petition. This period has historically provided the employer with ample time to campaign and communicate to employees regarding unionizing. This is the "elephant in the room."

New Guidance on Timing of Election Possible

You may recall that the Democrats in Congress attempted to amend the National Labor Relations Act to require the Board to conduct elections within a very short period of time, among other proposed amendments. Those efforts were defeated, but with these new rules, the Board has in effect, avoided the need to amend the statute in many respects. Stay tuned; it is likely we will see the Board issue a new guidance, requiring the Region to conduct the election within days, not weeks, of the filing of the petition.

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