Monday, December 29, 2014

Unlike Central Ohio Weather, NLRB Ends 2014 With Flurry of Activity

Another NLRB initiative was resurrected on December 15 when a final regulation was published shortening the time to conduct union elections in the private sector after April 14, 2015.  Management literature has referred to this as the “ambush rule’ or “quickie election” rule because of its potential to significantly shorten the period during which election and educational communications are shared with employees by employers about the pitfalls union representation.  (Unions generally start their electioneering and education about the benefits of union representation far in advance).  While a union election generally is now held approximately 42 days after a petition is filed, the new regulation contemplates an election could be held as early as 13-22 days after a Petition (for union recognition, unit clarification or decertification) is filed.  Accordingly, unless this regulation is delayed or voided through litigation, employers will need to be better prepared before a Petition is filed because there will not be much time to respond accurately or appropriately under the new rules otherwise.   The new regulation also imposes new obligations on employers to post and distribute notices, to assemble and serve alphabetized lists of employees, and to provide unions with employees’ personal cell phone numbers and email addresses.  On other fronts, the NLRB also changed this month its rules concerning deferring unfair labor practice charges which are also the subject of arbitration or grievance settlements and how it will address union organizational efforts among faculty at religious colleges and universities.

After a Petition is filed with the NLRB (which must be done electronically and served simultaneously on the employer under the new rule), the NLRB Regional Director then serves on the parties a Notice of Hearing.  This pre-election hearing will generally be held within 8 days of service of this notice.  (Because this Notice could be served the same day as when the Petition is filed, the employer’s obligations conceptually begin almost immediately).

One of the significant new requirements in this regulation is that employers will now be required to post (and to distribute electronically if that is the employer’s custom), a Notice of Petition within 2 days of when the Regional Director serves the employer with a Notice of Hearing (which will also contain a copy of the Notice of Petition).  Violation of this rule could result in the election being set aside, even if the employer ultimately wins the election:

Within 2 business days after service of the notice of hearing, the employer shall post the Notice of Petition for Election in conspicuous places, including all places where notices to employees are customarily posted, and shall also distribute it electronically if the employer customarily communicates with its employees electronically. The Notice of Petition for Election shall indicate that no final decisions have been made yet regarding the appropriateness of the petitioned-for bargaining unit and whether an election shall be conducted. The employer shall maintain the posting until the petition is dismissed or withdrawn or the Notice of Petition for Election is replaced by the Notice of Election. The employer’s failure properly to post or distribute the Notice of Petition for Election may be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a). A party shall be estopped from objecting to the nonposting of notices if it is responsible for the nonposting,  . . . .

Employer will also be required to produce a written list of objections to the petitioned election (regarding, for instance, the proposed scope of the bargaining unit, the improper inclusion of supervisors, the improper exclusion of other employees, etc.) by noon the day before the pre-election hearing.    Depending on when the Regional Director serves the Notice of Petition, this Statement of Position might be due as early as seven days after the Petition is filed.   Under the new procedures in the regulation, employers may not be entitled to file post-hearing briefs following the pre-election hearing.  Indeed, the pre-election hearing may not even determine voter eligibility or supervisory status before the election.   In fact, an evidentiary hearing on the employer’s objections may not be not held until after the election.  While the NLRB’s majority thinks this will save time (especially if the employer ultimately wins the election anyway), this ambiguity will create significant problems for employers in determining supervisory status of certain employees in order to avoid unfair labor practice charges and to effectively communicate with employees during the election period.

Another new requirement in the regulation is that the employer is also required to file at the same time (i.e., the day before the pre-election hearing) a list of employees:

The Statement of Position shall include a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing, and if the employer contends that the proposed unit is inappropriate, the employer shall separately list the full names, work locations, shifts, and job classifications of all individuals that the employer contends must be added to the proposed unit to make it an appropriate unit. The employer shall also indicate those individuals, if any, whom it believes must be excluded from the proposed unit to make it an appropriate unit. The list(s) of names shall be alphabetized (overall or by department) . . .

Having such an employee list creates an advantage for the union if it wants to dismiss the Petition and attempt to organize larger group of employees.  At present, unions only need  30% of employees to sign cards expressing interest in an election before filing a Petition, but will need a majority of the eligible employees to vote in favor of the union in order to win.    As a strategic matter, a union could identify an inappropriately small unit for its initial petition, but then dismiss the petition and organize a larger group after the employer produces the new employee list for the entire (and larger) appropriate unit.

After the pre-election hearing, the Regional Director will then issue a Directive and Notice of Election.  (Conceptually, this could be issued the same day as or even the day after the day of the pre-election hearing).  At this point, the employer must file within 2 days an Excelsior list, which has been expanded under the new regulation to include the employees’ personal email and cell phone numbers.   This alphabetized Excelsior list  must contain “the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cellular (‘‘cell’’) telephone numbers) of all eligible voters.” There are no privacy protections or opt-out provisions for employees to avoid distribution of their personal email and cell phone numbers.   On the other hand, if the employer does not collect that information, it need not obtain it just to include in the Excelsior list.   The dissenting NLRB members note that this requirement is inconsistent with the NLRB’s recent decision in Purple Communications (where the Board ruled that employers must presumptively grant email access to employees for union and other section 7 communications because personal cell phones and emails were found to be insufficient).

The Federal Register explanation for the new rule is 184 pages long and obviously contains many details which are not mentioned in this summary.   Notably, an employer will not have time to read all of those pages after receiving a Petition because it will have a lot of other work to do. 

On December 16, the NLRB adopted new standards for determining when to exercise jurisdiction over self-identified religious colleges and universities and how to determine whether faculty are managerial employees who lack rights under the NLRA in Pacific Lutheran University.

A day earlier, in Babcock & Wilcox Construction Co., 361 NLRB 132, the NLRB changed its practice of automatically deferring unfair labor practice charges to the results of labor arbitrations and grievance settlements. 
 
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.