In 2011, the National Labor Relations Board (“NLRB” or the “Board”) issued proposed changes to its election rules for the purposes of speeding up the election process. These so-called “quickie” election rules were adopted by the Board without a quorum. The rules were subsequently invalidated by the U.S. District Court for the District of Columbia, and 94% of union elections continued to occur within 56 days after a union had filed an election petition.
On February 6, 2014, the Board again issued proposed “quickie” election rules, seeking public comment through April 7. While the “quickie” election proposal to shorten the time between the filing of a petition and an election has made news, the NLRB is proposing much more affecting employers. When taken as a whole, the proposed changes will significantly alter the manner in which employers respond to election petitions.
Several of the proposed changes are discussed here.
Scheduling the Pre-Election Hearing
Pre-election hearings are held, among other reasons, for the purpose of determining whether certain positions should be included in the bargaining unit the union seeks to represent, based upon employees’ job title and duties, or supervisory status. After a petition for representation is filed, the pre-election hearing is currently scheduled in seven to 14 days. During this time period, after the employer receives the petition (and it is routed to the correct person inside the company), the employer generally retains counsel, learns about the NLRB election process, educates counsel about the potential bargaining unit, and decides whether the potential bargaining unit is appropriate. Once this decision is made, the employer and counsel prepare for the election hearing (including preparing witnesses to testify) and work on negotiating a stipulated election agreement. In 90% of cases, the parties agree to the bargaining unit and other pre-election issues in lieu of holding a hearing.
The Board has proposed changing the rule to require the pre-election hearing to be scheduled within seven days – effectively cutting in half the time for an employer to gather information, prepare for the hearing, and/or negotiate a stipulated election agreement.
Submission of a Written Position Statement
In addition to reducing the time an employer has to prepare for the pre-election hearing, the Board has proposed that employers submit a written position statement within this same seven-day period. The position statement must set forth the employer’s position on a number of issues and must include lists of employees – along with their contact information – whom the employer believes are included and excluded from the bargaining unit. Any information that is not included in the position statement would be waived in any future proceedings.
Accordingly, during the same seven-day period in which employers are analyzing their work force and preparing for the pre-election hearing, they will be required to make a “final” determination as to who should and should not be in the bargaining unit. In addition, they will need to prepare a list with names and contact information – not just job title.
Further, their counsel will be required to prepare a written statement setting forth the company’s position on a variety of issues. This proposed change will have the effect of (1) requiring the expenditure of even more time and expense during a shorter period of time; (2) providing the names and contact information of potential bargaining unit members to the union – which could then withdraw the election petition, but would still have the information necessary to contact employees in the future; and (3) making it more difficult to reach a stipulated election agreement by requiring a written statement setting forth a formal position on a variety of contested issues, along with the requirement that any issues not addressed are waived in the future. This proposed requirement will make the election process more adversarial, not less so.
As stated above, pre-election hearings are held, in part, to determine whether certain positions should be included in the bargaining unit. The NLRB’s proposed changes to the election rules would hold these questions in abeyance if the number of challenged positions was less than 20% of the bargaining unit. The unit would then vote, with the challenged ballots being held until after the election to determine whether counting them and/or a post-election hearing is necessary.
The Board’s procedure fails to take into consideration the fact that many of the issues of eligibility relate to supervisory status – whether a particular employee or position is a supervisor under NLRB rules. If the individual is a supervisor, then that employee cannot vote and cannot engage in election campaigning. Conversely, if the individual is determined not to be a supervisor then he or she should vote and may engage in the union campaign. Not knowing this information definitively at the outset of the process subjects employers to the possibility of unintentionally committing unfair labor practice charges, and prohibits employees from knowing with certainty that they belong in the union and that their vote will count.
The Board held a public hearing about the proposed changes on April 10 and 11, 2014. Representatives of employer groups and unions presented their comments in favor of or against the proposed rules, or proposed modifications. Once the rules have been finalized and adopted, more guidance will be available to employers.