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.

Union Relations: The NLRB's Semptember Hat Trick Benefits Employers

Suing Unions Just Got Safer. The NLRB recently rejected (in a 3-2 vote) its former position (which had already been rejected by the Supreme Court) and held “that the filing and maintenance of a reasonably based lawsuit does not violate the [NLRA], regardless of the motive for bringing it.” BE&K Construction Co., 351 NLRB No. 29 (9/29/07). In that case, the NLRB had previously held that the employer violated the NLRA when it sued a union and lost on summary judgment because the lawsuit had been brought in retaliation for the union campaigning against the employer’s receipt of a lucrative contract in 1987 (by, among other things, lobbying government agencies and politicians, handbilling, picketing, filing frivolous grievances against business partners and filing state court lawsuits, etc.). The NLRB had ordered the employer to pay the union’s legal fees in defending against the lawsuit, but was reversed on appeal. The Supreme Court had previously held in Bill Johnson’s, that, with respect to ongoing litigation, “[t]he filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if [the suit] would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the Act.” The Board recognized that the U.S. Constitutional guarantee of the right to petition government is sacred (even for unfeeling employers) and cannot be limited by restrictions on reasonable lawsuits. Only when the plaintiff has no hope of recovering could a retaliatory lawsuit constitute an unfair labor practice. The result is the same whether the litigation is pending or has been concluded. Insomniacs can read the full decision at: http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35129.htm&size=188

Employee Choice Trumps Giving Union a Free Ride; Neutrality Agreements Aren’t What They Used to Be. The NLRB recently held that the recognition bar and the contract bar would no longer apply for the first 45 days after an employer voluntarily recognizes a union based on a card check (i.e., without a secret ballot vote) and that, as a result, employees could file decertification petitions in the 45 days following a voluntarily recognition of a union based on a card-check. Dana Corp., 351 NLRB No. 28) (9/29/07). This right to seek decertification is not affected by any collective bargaining agreement which the employer reaches with the union (following good faith bargaining as required following the voluntarily recognition of the union). Indeed, if the parties fail to provide employees of notice of their right to seek decertification for 45 days, neither the recognition bar nor the contract bar will not prevent any future election (for decertification or for a rival union).

In that case, the two employers entered into neutrality and card check agreements with the UAW. Within 35 days of recognizing the unions, employees in both units filed de-certification petitions with the NLRB. The applicable Regional Directors dismissed both petitions “based on an application of the Board’s recognition-bar doctrine” (i.e., , “an employer’s voluntary recognition of a union, in good faith and based on a demonstrated majority status, immediately bars an election petition filed by an employee or a rival union for a reasonable period of time. A collective-bargaining agreement executed during this insulated period generally bars Board elections for up to 3 years of the new contract’s term.”) The Board recognized that:

"the immediate post-recognition imposition of an election bar does not give sufficient weight to the protection of the statutory rights of affected employees to exercise their choice on collective-bargaining representation through the preferred method of a Board-conducted election.

"In order to achieve a “finer balance” of interests that better protects employees’free choice, we herein modify the Board’s recognition-bar doctrine and hold that no election bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed. The requisite showing of interest in support of a petition may include employee signatures obtained before as well as after the recognition. These principles will govern regardless of whether a card-check and/or neutrality agreement preceded the union’s recognition.

"Modifications of the recognition bar cannot be fully effective without also addressing the election-bar status of contracts executed within the 45-day notice period, or contracts executed without employees having been given the newly- required notice of voluntary recognition. Consequently, we make parallel modifications to current contract-bar rules as well such that a collective-bargaining agreement executed on or after the date of voluntary recognition will not bar a decertification or rival union petition unless notice of recognition has been given and 45 days have passed without a valid petition being filed."


Union Salts No Longer Automatically Protected by the NLRA.

For many decades, some non-union employers have attempted to discourage union organization of their workforce by refusing to hire qualified union organizers that apply for work. These union organizers are paid by a union to apply to work at a non-union employer and, in addition to the wages paid by the non-union employer, are also paid by the union. Some of these “salters” also are suspected of attempting to disrupt the operations of the non-union employer so that it will not be as profitable as union employers and will “go on strike” rather than resign so as to protect re-employment rights. However, the Supreme Court has made clear that paid or unpaid union organizers are still considered to be employees under the NLRA. Town & Country Elec., Inc. v. NLRB, 116 S. Ct. 450 (1995). Refusing to hire an applicant because he or she has formerly worked for a union employer or is suspected of being a union organizer violates the NLRA. See e.g., NLRB v. Fluor Daniel, Inc., 102 F.3d 818 (6th Cir. 1996).

Nonetheless, earlier this year, the NLRB limited back pay awards to salters who had been unlawfully terminated on the grounds that, among other things, they would not have remained employed long at a non-union employer or after their aim of unionizing the workforce had been achieved. In other words, there is only a rebuttable presumption of indefinite employment in salting ULP cases and the NLRB General Counsel bears the burden of proving the appropriate period of back pay. Oil Capital Sheet Metal, Inc., 349 NLRB No. 118 (2007). See also,, Aneco Incorporated, v. National Labor Relations Board, 285 F.3d 326 (4th Cir. 2002).

Moreover, in September 2007, the NLRB went further and placed upon the Board’s General Counsel the burden of proving that the “salt” was genuinely interested in obtaining employment when s/he submitted a job application. Toering Electric Co., (9/29/07). The Board noted that job applicants are protected from discrimination in employment on the basis of their union activities. However, the Board then determined that “applicants” only include individuals who are genuinely interested in employment and are not motivated simply by the desire to file a ULP Charge if they are denied employment.

The Board felt that this ruling was necessary because some unions had “submitted batched applications on behalf of individuals who were neither aware of the applications nor interested in employment opportunities with the employer. In other cases, individuals submitted applications but were not interested in obtaining employment with the employer. Their applications, sometimes accompanied by conduct plainly inconsistent with an intent to seek employment [such as omitting any work history], were submitted solely to create a basis for unfair labor practice charges and thereby to inflict substantial litigation costs on the targeted employer. The absence of a clear and consistently applied requirement that the General Counsel must prove an applicant’s genuine interest in securing employment has opened the door to these abusive tactics. By imposing this requirement under FES, we shall prevent those who are not in any genuine sense real applicants for employment from being treated by the Board as if they were.”

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomniacs can read the full decision at http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35118.pdf.