On February 6^th, the National Labor Relations Board (NLRB) published new, proposed rules for conducting proceedings on petitions leading up to NLRB elections for employees to decide whether they want to be represented by a union.  Most observers of the NLRB and those who regularly practice before it believe that the proposed rules will be adopted after the 60-day required comment period with little or no change.  If so, they will enhance unions’ ability to gain support between the time a petition is filed and an election is held, deprive employers of rights they have under the current rules to contest the scope of and inclusions or exclusions from the bargaining unit that the union seeks to represent, and significantly shorten the period of time between a petition and the election.  Shortening this time period will make it extremely difficult for employers to communicate with and educate employees about facts that they need to consider before they vote.

The Way Unions Organize Underscores the Significance of the Proposed Rule Changes

A petition by a union seeking to represent employees must have the support of at least 30% of the employees in the bargaining unit sought by the union or the petition will be dismissed.  In most instances, a union’s organizing activities before filing a petition and solicitation of authorization cards necessary to support the petition are undertaken without the employer’s knowledge.  As a result, employees who sign cards have usually heard only the messages that union gives them about why they need the union.  If an election is ultimately conducted, the union must receive a majority of valid votes cast in the election in order to win.  Unions usually petition for a bargaining unit that is most favorable to their likelihood of winning an election, but assume that their support will be whittled away once the employer is served with a petition and communicates with and educates the employees about the facts.  Accordingly, most unions will not even file a petition unless they have authorization cards signed by at least 60% of the employees in the bargaining unit they think they will win an election.  Therefore, in most instances, an employer served with a representation petition is more likely to lose an election if it is conducted in the bargaining unit favored by the union within a short period of time before the employer has the opportunity to communicate to its employees the reasons why electing the union is not in their best interest.

The Proposed Rules Changes

If adopted, the current rules will be changed in the following ways:

• The current rules provide for a 25-day minimum period of time between the filing of a petition and the date of an election.  This time period can be extended if the employer requests a hearing on the union’s petition to contest the appropriateness of the bargaining unit sought by the union.  Currently, the average date between the filing of a petition and the election is 38 days.  The proposed rules eliminate the 25-day minimum period.

• The current rules provide for an evidentiary hearing 14 days from the date a petition is filed if the employer requests a hearing to contest the appropriateness of the bargaining unit sought by the union.  The proposed rules shorten this period to seven days.

• Under the current rules, an employer normally has the right to file a post-hearing brief with the NLRB’s regional director seven days after the hearing.  The proposed rules eliminate this right, and allow post-hearing briefs only at the regional director’s discretion.  This will likely have the effect in many, if not most, cases of eliminating an additional seven days between the filing of a petition and the date of the election.

• Parties to a representation case currently can assert and litigate any issue in an evidentiary hearing that is relevant to whether an election should be held, and, if held, the scope and composition of the bargaining unit.  Under the proposed rules, parties will be required to file and serve on the other party detailed statements of position on any of the issues that may possibly be heard at any evidentiary hearing on a date specified in the notice of hearing before any evidence is taken at the hearing.  Failure to take a position on any issue that might affect the scope or composition of the bargaining that arises during the hearing will be considered a waiver to the right to litigate that issue.  As a result, an employer who does not raise any conceivable issue as to the eligibility to vote as to any group of employees or individuals in the bargaining unit sought by the union in the position statement will not be able to introduce evidence on those issues at the hearing.

• The employer’s statement of position must include a list of the names, work locations, shifts, and job classifications of all employees in the bargaining unit sought by the union, and if the employer contends that the bargaining unit sought by the union is not appropriate, it must identify the most similar bargaining unit that it concedes is appropriate.  Failure to include this information will be considered a waiver of the employer’s right to contest the appropriateness of the bargaining unit or inclusions or exclusions from the unit.  This is an entirely new rule that will give the union access to employee information to which it would not have access under the current rules until after an election is directed.

• Under the current rules, an employer must submit to the Regional Office a voter eligibility list seven days after a decision and direction of an election. The list must contain the names and addresses of the employees eligible to vote in the election.  The Regional Office transmits the list to the union. The proposed rules reduce the time for providing this list to two days, and also require the employer to include the employees’ available home telephone numbers and available email addresses, work locations, shift, and job classifications.

• First-line supervisors can be an effective resource in an employer’s campaign during the pre-election period because they work closely with bargaining unit employees.  Statutory “supervisors,” as defined in the National Labor Relations Act (NLRA), are not “employees” who are entitled to vote in NLRB elections, have no rights under the NLRA, and can be required to campaign against the union.  An employer cannot require employees who have a right to vote in an election to campaign against a union.  However, whether or not a first line supervisor is a statutory “supervisor” or an “employee” under the NLRA is sometimes a close question.  If an employer treats individuals in a close case as statutory supervisors, the employer risks committing unfair labor practices, which could cause an election that the employer wins to be set aside if the NLRB later rules that the individuals are employees.  If the employer acts cautiously and does not use those individuals to campaign against the union, the employer has lost potentially valuable resources if the NLRB later rules that they are statutory supervisors.  As a result, employers need NLRB resolution of whether individuals in close cases are statutory supervisors or employees early in the NLRB proceedings.  Under the proposed rules, voter eligibility issues that involve less than 20% of a bargaining unit will not be decided until after the election is held and will be resolved in post-election proceedings.  Unless this threshold is met, the status of any individuals as employees or as statutory supervisors will not be resolved before the election, leaving the employer in limbo as how to treat them.

• Under the current rules, an employer has 14 days from the date of the regional director’s decision and direction of election to request review of the decision by the NLRB.  Although stays of elections pending NLRB review are discretionary, stays are granted in appropriate cases.  The proposed rules eliminate any right to request review of the regional director’s decision and direction of an election before the election is held.  This will have the effect of further shortening the time between the filing of a petition and the date of election in those situations where stays are normally granted.

• Under the current rules, parties have the right to have the NLRB review the regional director’s decision and direction of election, even if the NLRB has not stayed the election pending its review.  Parties also have the right to NLRB review of the regional director’s ruling on post-election objections to conduct by the NLRB agent who conducted the election and by the other party during the pre-election period that interfered with and affected the outcome of the election. Under the proposed rules, post-election NLRB review of these decisions is totally discretionary. The effect of this proposed rule is that there will be many decisions by the regional directors that the NLRB never reviews.

• Finally, the proposed rules state that the NLRB’s denial of a post-election review of the regional director’s decisions precludes an employer from re-litigating any issue which was raised before the regional director in a related subsequent unfair labor practice proceeding.  Since the only way an employer can obtain federal court review of NLRB decisions in representation cases is through related subsequent unfair practice proceedings, this new rule appears to be an attempt by the NLRB to curtail employers’ ability to obtain court review of NLRB decisions, even in those cases that were effectively decided by a regional director where the NLRB exercised its discretion to decline to review them.

Conclusion

If the proposed rules are adopted after the comment period closes on April 7, 2014 with little or no change, as is expected, there is likely to be court litigation challenging the rules.  We are monitoring these developments and will publish further updates as the situation evolves.