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Expert Q&A on NLRB Amendment of Union Representation and Election Procedures
Practical Law Article 0-616-5966 (Approx. 6 pages)
Expert Q&A on NLRB Amendment of Union Representation and Election Procedures
by Practical Law Labor & Employment
| Law stated as of 23 Jun 2015 • USA (National/Federal) |
An expert Q&A with Ron Chapman of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on the implications of the amendments to the National Labor Relations Board (NLRB) union representation election procedures.
Amendments to the National Labor Relations Board (NLRB) representation case (union election) procedures went into effect on April 14, 2015. Among other things, the new "quickie" or "ambush" election rule increases the demands on employers before elections, increases the consequences of not identifying and raising legal challenges about union petitions and petitioned-for bargaining units before the elections, and shortens periods for employers to prepare for elections (NLRB Representation Case Procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014)). For more detailed information on the changes brought about by the amendments, see Preparing for Amendments to the NLRB Union Election Process Checklist.
To see how these changes have impacted the union election landscape approximately two months after their effective date, we spoke with Ron Chapman, Jr., a shareholder in the Dallas office of Ogletree, Deakins, Nash, Smoak & Stewart P.C.
The amendments to the NLRB's union representation elections rules went into effect on April 14, 2015. What impact are you seeing from the changes?
Employers have seen a significant increase in the number of union recognition petitions filed. In the first two months after the rules took effect, 405 petitions were filed with the NLRB, a 15.7% increase over the same time period for 2014. Those petitions affect 24,751 employees with an average unit size of about 60 employees. The top three impacted industries are:
- Healthcare and life sciences.
- Construction, engineering and landscape.
- Transportation and courier services.
Elections also occur more quickly. Before the rules took effect, the average time from petition to election was 38 days. Since the rules took effect, that average has dropped to 22.7 days. In other words, employers have had about 40% less time to communicate with employees about unions and unionization. Of those petitions filed since April 14 that have gone to elections and have official outcomes, unions have won about 60%.
Which are the changes creating the biggest concerns for employers and why?
The new rules impose new burdens on employers and provide less time to communicate with employees prior to the election, thereby depriving employees of being fully informed prior to voting. Specifically:
- Under the new rules, most union representation elections may be held in a range from ten to 21 days after a petition has been filed.
- The new rules effectively reduce the number of pre-election hearings. In addition, all pre-election hearings must begin just eight calendar days after the date a hearing notice is issued. Under the new rules, most disputes over voter eligibility and inclusion or exclusion from a bargaining unit are resolved after the election.
- During the period between a petition being filed and a hearing being held, employers are required to research and file a detailed legal position statement addressing issues such as exclusions from the bargaining unit; the appropriateness of the unit; and the proposed date, time, and place of the election. Employers must now file this "Statement of Position" by noon on the day before the hearing begins. The Statement of Position must include a list of prospective voters with their names, job classifications, work shifts and work locations. All issues not raised in the Statement of Positions are waived.
- Employers must provide unions, within two business days of the election agreement or decision directing an election, their employees' personal telephone numbers and personal email addresses. Specifically, employers seeking a pre-election hearing must provide unions with a list of all employees in both:
- the challenged, petitioned-for bargaining unit; and
- the unit whom the employer contends are appropriate.
- Two business days after the unit issue is decided, employers must electronically provide the union with a list including each employee's name, home address, telephone number, email address, work location, shift and job classification.
What is the state of current legislative or litigation challenges to the new rules?
Legislatively, efforts to block the ambush election rules through the Congressional Review Act (5 U.S.C. § 802) succeeded in resolutions before both houses of Congress, passing the House in a 232-186 vote and the Senate by a vote of 53-46. However, President Obama effectively pocket vetoed this resolution when he signed a Memorandum of Disapproval (Memorandum of Disapproval Regarding S.J. Res. 8 (Mar. 31, 2015)). Future legislation to overturn the new rules, and appropriations riders to stop funding that will be used to enforce the new rules, will likely be vetoed as well.
Lawsuits challenging the new rules were filed in the US District Court for the District of Columbia (Baker DC v. NLRB, No. 15-0571 (ABJ), (D.D.C. Apr. 22, 2015)) and the US District Court for the Western District of Texas (Associated Builders & Contractors of Tex., Inc. v. NLRB, No. 1-15-CV-026 RP, (W.D. Tex. June 1, 2015)). On April 22, the US District Court for the District of Columbia denied the petitioning employer and three of its employees a temporary restraining order, finding that the election amendments did not cause irreparable harm to:
- The employer's:
- First Amendment rights; or
- due process rights.
- Employees' privacy rights.
The US Chamber of Commerce has filed a motion for summary judgment in the District of Columbia case, and a decision is expected in the near future.
On June 1, 2015, the judge for the Western District of Texas lawsuit granted the NLRB's motion for summary judgment and dismissed the case, finding "plaintiffs have failed to show the new rule, on its face, is in violation of the [National Labor Relations Act] or the [Administrative Procedure Act]."
As a practical matter, what should employers do to respond appropriately to unionizing efforts in this new legal environment?
Given the shortened election time frame, employers must act now if they want to remain union-free in the future. Some proactive steps employers should consider taking include:
- Review handbooks and personnel policies to ensure NLRB compliance and avoid a rerun election.
- Determine which employees meet the NLRB test for supervisor status and train those individuals on how to detect and react to a union campaign.
- Develop appropriate campaign material in advance of a petition being filed.
- Identify and train a management response team to work with counsel in developing effective communications with employees.
- Prepare a draft campaign calendar that fits within the ten to 21 day time period for elections.
- Educate employees on the company's position on unions and unionization.
- Conduct vulnerability assessments at select or at-risk locations.
- Analyze bargaining unit issues at select or at-risk locations.
- Prepare an outline for the required NLRB position statement and collect supporting exhibits.
To see, compare and generate customized reports on analysis of sample collective bargaining agreements from various industries, unions and locations and get up to speed on the employment terms and conditions unions are demanding in collective bargaining, see the What's Market Collective Bargaining Agreements Database.