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petition is dismissed or withdrawn or the Notice of Petition for Election is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.
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.
