NLRB Charges Forward with New Election Rules

UPDATE: (4/9/15) After Congress passed a resolution preventing the implementation of these new changes by the NLRB, President Obama has vetoed that resolution.  It does not appear that supporters of the resolution have the two-thirds majority necessary to override the veto.  While there are still federal lawsuits pending in Texas and D.C., neither judge has issued a stay preventing the implementation of these new rules.  Unless a stay is issued, it seems highly likely that the new rule will take effect on April 14.

UPDATE: (4/8/15) You can find a copy of the powerpoint the NLRB is using to train their Regional Offices, here.

With a typical amount of cooperation, teamwork and goodwill with Congress and the public, the NLRB has finally announced changes to its election procedures.  There are numerous changes to these procedures, and they will take effect on April 14, barring further injunctions or responses from Congress (of which there have been several).  The likely outcome of these new rules is that elections will happen faster, and unions will win an increased number of them.  According to the most recent statistics prepared by the government, unions currently win about 66% of their elections.  The major changes to the current election procedures are:

  • Notice Posting - The employer must post a government supplied notice detailing the election, the employee's rights under the NLRA and rules governing campaign conduct.  The notice must be posted within two business days after the filing of the petition, and also by email if the employer uses email to communicate with its employees.  Failure to post the notice could result in a free 're-run' election if the union loses the first election.
  • Statement of Position - If the employer wishes to contact any aspect of the election petition (the size of the proposed unit, whether someone is a supervisor, etc.), it must file with the NLRB a Statement of Position within seven days of the Notice of Hearing.  Anything not mentioned in the Statement of Position will not be considered during the pre-election Hearing.  The full name of every employee included by the union in the election, as well as any employee or groups of employees (where the employer believe that other locations or departments should be included) and other information must be provided directly to the union and the NLRB at this time as well.  The union does not need to respond until at the Hearing.
  • The Hearing is Limited - types of issues that can be resolved at the Hearing is severely limited, and employers no longer have the ability to provide post-Hearing briefs.  The most significant of these is that whether or not a supervisor belongs in the unit will not be resolved at this point.  Many times, the same individual the union wants to include is the individual the employer would choose to serve as a spokesperson to the union.  This change severely complicates this problem.
  • Employee's Personal Information - Once an election is scheduled, the employer must provide to the union the personal information it has for the employees eligible to vote.  This personal information now includes personal email addresses and personal cell phones, in addition to the home addresses and other information that was required before.
  • Super-fast elections - An election can be held as quickly as 13 days after the filing of the petition.  If the union has not announced its intent to organize your employees, you could have less than two weeks to figure out what is going on, and how to respond.

 

There are many things that a company can do before a petition for election is filed, such as training, audits, and the creation of a quick-response team.  Most of those things have additional benefits as well, and can help identify potential problems before they can cost you valuable employees (or a union election).  Please do not hesitate to contact me with any questions or for a free consultation.

 

If you have any questions, please do not hesitate to contact me at tor@tor.org.  This post is a publication of Christensen Law, LLC.  More details can be found at www.tor.org