Labor, Employment, Benefits & Immigration

On December 12, 2014, the National Labor Relations Board (the “NLRB”) issued a Final Rule (“Rule”) amending its union election procedures. The Rule, which will become effective on April 14, 2015, substantially changes the current union election process, with the intention of making election procedures more streamlined. While the Rule is likely to be challenged, the outcome of any such challenge will not be definite for some time. In the interim, employers should be prepared to follow the Rule in subsequent union elections.

The Rule makes a number of procedural and substantive changes to the NLRB’s prior election procedures. The most significant of these changes are:

The Statement of Position

• After an election petition is filed, the non-petitioning party (usually the employer), is required to file a Statement of Position generally within seven (7) days (one day prior to the start of the pre-election hearing).
• The Statement of Position must address all issues the non-petitioning party intends to raise at the pre-election hearing, including the appropriateness of the petitioned-for unit and any challenges to specific individuals in the petitioned-for unit’s eligibility to vote. Any issues not raised in the Statement of Position will be deemed waived.
• The Statement of Position must provide a list of all employees in the petitioned-for unit, as well as the employees’ job classifications, shifts and work locations.

The Pre-Election Hearing

• Issues raised at the pre-election hearing will be limited to those which are necessary to determine whether it is appropriate to conduct an election. This means that most evidence concerning an employee’s eligibility to vote or the scope of the unit will not be heard until after the election, if at all, given that it may have no impact on the results of the election.

The Voter List

• The employer must submit the voter list within two (2) days of the Regional Director’s approval of an election agreement or direction of election. The list must now include personal phone numbers and email addresses of all employees if available to the employer.

The Election

• The time period between the filing of an election petition and the holding of an election will be significantly shorter than before the issuance of the Rule. Elections will no longer be delayed by 25-30 days after the issuance of the Regional Director’s direction of the election. Given the NLRB’s intention to streamline and expedite the representation process, as also evidenced by the new limitations on the issues that may be raised at the pre-election hearing, it is likely that elections will take place within two (2) or three (3) weeks of the filing of the petition.

In light of the Rule and its significant impact on the election process, we recommend that employers take a number of steps now, regardless of whether they believe they may be the subject of a union campaign in the near future:

• Review your union free policy and ensure that your employees are familiar with it.
• Ensure that your supervisors are trained to spot union organizing activity and how to appropriately respond to it.
• Review your campaign strategy and adjust it to account for the new, shorter timeframes between the filing of an election petition and the direction of an election.
• Spend time identifying and addressing workplace issues that could motivate employees to seek union representation.
• Analyze your workforce and prepare arguments for the bargaining units you believe are appropriate. Make any necessary workforce adjustments now.
• Review the job duties of your first line supervisors to ensure that their duties satisfy the criteria used by the Board for differentiating between supervisors and employees. Make any necessary adjustments now to ensure their supervisory status.

Given that the NLRB’s changes to its representation case procedures will result in very short union campaigns, taking these actions now will allow employers to proactively address issues that may become relevant during such campaigns. Doing so is necessary for employers to effectively respond to an election petition, conduct a campaign, and hold an election in a manner that satisfies the NLRB’s procedural requirements and protects the interests of the employer and its employees.

This alert was written by Marc K. Sloane, Counsel and Lee C. Douthitt, Associate, members of the Labor, Employment, Benefits & Immigration Group. To see the full list of lawyers in this group, click here.

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