United States: The NLRB’s Changes To Representation Case Procedures

Beginning on April 14, 2015, the National Labor Relations Board's ("NLRB" or the "Board") new representation case procedural rules will be applied to all representation petitions filed thereafter.  While the NLRB insists that the new rules "remove unnecessary barriers to the fair and expeditious resolution of representation cases" and "simplify representation-case procedures," a closer reading of the rules makes it clear that they are designed to place a more onerous burden on employers during the representation case process.  Examples of the increased burden on employers include, but are not limited to:

  1. Immediately following the Board's receipt of a union's petition for election, it will mail the employer, among other things, a Notice of Hearing and a Notice of Petition. The employer will then be required to post a Notice of Petition in all places where notices to employees are customarily placed within two days of its receipt of the Notice of Petition.  If the employer regularly communicates with its employees via email, then the employer must also distribute the Notice of Petition via email.  Significantly, this requirement is imposed upon the employer before the employer can contest the validity of the petition filed by the union.  If the union's petition is subsequently dismissed or withdrawn, then the employer may remove the Notice of Petition.  Otherwise, the Notice of Petition must remain posted until the employer posts the Notice of Election.  The employer's failure to timely and properly post the Notice of Petition may serve as grounds to set aside the election.
  2. The Regional Director will set the date for the pre-election hearing eight days following service of the Notice of Hearing unless the employer can establish the existence of "unusually complex issues."
  3. The employer is required to file a Statement of Position no later than noon on the business day before the scheduled hearing. The Statement of Position must:
  • Identify the issues that the employer wishes to litigate at the hearing and set forth whether the employer contends that the proposed unit is not appropriate, the classifications, locations or other employee groupings that must be added to or precluded from the unit to make it an appropriate unit;
  • Include an alphabetized electronic list of employees with the full names, work locations, shifts, and job classifications of all individuals in the proposed unit and, if the employer claims that the unit is inappropriate, a separate list of the full names, work locations, shifts and job classifications of all individuals the employer claims should be added to the proposed unit in order to make it an appropriate unit;
  • Include a separate list of any individuals on the list whom the employer believes must be excluded from the proposed unit to make it an appropriate unit;
  • Include a list of those individuals whose eligibility to vote the employer intends to contest at the pre-election hearing and the basis for such contention; and
  • Raise all issues to be litigated at the pre-election hearing such as: (1) jurisdiction; (2) labor organization status; (3) bars to elections; (4) appropriate unit; (5) multi-facility and multi-employer issues; (6) expanding and contracting unit issues; (7) employee status of a significant portion of the unit; (8) seasonal employees; (9) inclusion of professional employees or guards with other employees in a unit; (10) eligibility formulas; and (11) craft health-care employees. Significantly, an employer will be deemed to have waived its argument on any of the above issues, except jurisdiction, if the employer fails to raise any such issues in its Statement of Position.
  1. Under the new rules, the Regional Director has discretion to defer litigation concerning individual eligibility or inclusion issues that "do not significantly change the size or character of the unit" until after the election. Such discretion could preclude an employer from litigating, prior to the election, whether certain individuals are supervisors and, thus, should be precluded from the unit.  As a result, employers may be left with the difficult decision of whether to include an effective supervisor as part of its election campaign team in light of the potential that the Board could conclude post-election that such supervisor was, in fact, not a supervisor under the National Labor Relations Act, and overturn the election results.
  1. The employer's time to provide the voter list (i.e., the Excelsior List) to the Regional Director and the union has been reduced from seven days following the Regional Director's approval of the election agreement to two days.
  1. The new rules also eliminate the 25-30 day stay of the election that had previously been in place to allow the Board to consider any request for review of the Regional Director's hearing decision. Instead, the Regional Director is ordered to schedule the election "at the earliest date practicable."  The rules further provide that the union will be asked at the hearing whether it waives its right to have the Excelsior List in its possession for ten days prior to the election.  If the union waives some or all if its right, it will substantially shorten the campaign period, thereby, significantly reducing the amount of time that the employer will have to speak with its employees prior to the election.

Unsurprisingly, these new "ambush election" or "quickie election" rules are currently being challenged in federal court.  See Chamber of Commerce v. NLRB, (D.D.C., No. 15-cv-9) and Associated Builders & Contractors of Texas, Inc. v. NLRB, (W.D. Tex., No. 15-cv-26).  However, employers must abide by the new rules while these challenges are pending.

For more information regarding the above, you can access: (1) the new rules here; (2) the NLRB's Guidance Memorandum on Representation Case Procedure Changes here; and (3) the NLRB's Representation Case Procedures Fact Sheet here.

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