In the face of the failure of the Employee Free Choice Act, the Liebman-led NLRB has taken it upon itself to overhaul the union election process. According to the NLRB, the changes will “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representations,” despite the fact that in FY 2010, the median timeframe for conducting initial elections was 38 days and 95% of all elections were conducted within 56 days. As Member Hayes said in his dissent, “In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation process takes too long. It is that unions are not winning more elections.”
The proposed changes to the current election process include:
The Petition and Pre-Hearing Process
- Petitions would be filed electronically.
- At the time of filing, the union would have to serve the petition on the employer.
- At the time of filing, the union would have to submit its showing of interest in support of the petition. The showing of interest must demonstrate that a “substantial number of employees wish to be represented” (it’s unclear what happened to the 30% requirement for RC cases; other petitions such as RD maintain that requirement; thus, it is equally unclear what the proposed “substantial number” language means).
- At the time of filing, the union would have to also file a Statement of Position (discussed below)
- The possible use of “electronic signatures” by employees to show interest is left open for consideration.
- The hearing date would be set 7 days after the petition date.
- The current “Notice of Election” issued at the time of the notice of hearing would be changed to an “Initial Notice to Employees of Election” and would be required to be posted.
Statement of Position
- The union at the time of filing a petition, and the employer, no later than the hearing date, would have to submit a Statement of Position.
- The Statement of Position would replace the Commerce Questionnaire.
- The employer would be required to include: (a) a position on the NLRB’s jurisdiction; (b) the appropriateness of the petitioned-for unit; (c) the existence to any bar to conducting the election; (d) any proposed exclusions from the petitioned-for unit (by name of person, job classification and reason); (e) position on the type of balloting; (f) position on the date, time and place of the voting; and (g) designation of a representative for service.
- In addition to the Statement of Position, the employer would have to include a list of all individuals employed in the petitioned-for unit, including work location, shift and job classification for each worker (unless the employer contends the petitioned-for unit is not appropriate, in which case, it must submit a list of employees in “the most similar unit the employer concedes is appropriate”). The list filed with the Region must also include the employees’ contact information – address, telephone number and e-mail.
- Failure to submit a Statement of Position would preclude a party from “raising any issue, presenting any evidence, cross-examining any witness concerning any issue, and presenting argument concerning any issue” that the party failed to timely raise in its Statement of Position.
- Eligibility or exclusion of individual employees would not be waived and may be addressed through the challenge process (it is unclear how this does not run afoul of the Act’s requirement that the Board determine the scope of a unit before an election).
- If eligibility and/or exclusion issues exceed 20% of the petitioned-for unit, a hearing would be conducted regarding the issues.
- The Statement of Position would be unnecessary if the parties enter into an election agreement.
- The NLRB’s goal is to minimize any pre-election hearings.
- As discussed above, hearings regarding employee eligibility or exclusion would be deferred to the challenge process unless they exceeded 20% of the petitioned-for unit.
- Hearings would be required to continue day-to-day absent extraordinary circumstances.
- Pre-election Board review would be eliminated, thus the prior restriction of setting an election no sooner than 25 days after a direction of election would be eliminated.
- Briefs could be filed only with permission of the hearing officer; the Board does not believe that briefs are needed in every case.
- The Regional Director could direct an election to take place with a decision to follow, no later than the tally of ballots (that is, a hearing does not necessarily mean more time before an election).
- A Final Notice of Election would still have to be posted (and sent electronically, if that is a customary means of communication), and would be transmitted to the employees electronically by the Board where they have e-mail addresses.
- The Final Notice would be required to be posted 2 days before the election (instead of 3 days).
- In addition to names and addresses, the employer would have to provide telephone numbers, e-mail addresses (it is unclear whether work or home or both), work location and shift for each employee.
- The employer would have to provide the list in electronic format (it is unclear whether .pdf is sufficient).
- The employer would be required to serve the list on the union and the Board at the same time.
- The list must be served within 2 days (instead of 7 days) of entering the election agreement or the direction of election.
- All requests for review would be postponed until after the election.
- If objections are filed, the objections and the evidence would have to be submitted in 7 days.
- The Board has invited comments on whether it should do anything to address organized labor’s abuse of blocking charges, and poses several questions to that effect, but does not propose a rule.
The Effects and Concerns for Employers
- Stipulated elections could be conducted in about 20 days from the date of the petition.
- Disputed elections could be conducted as soon as 30 days from the date of the petition.
- The shortened time frame results in severe limits on how the employer can educate employees about their decision and as a result, employees are deprived of the opportunity to make informed decisions.
- There appears to be significant due process issues whereby an employer has 7 days to preserve every legal issue or it is forever waived.
- Certain provisions of the proposed rules appear to be inconsistent with the Act.
- Because virtually all of the litigation is shifted to post-election, employers will be put in a perpetual “damned if you do, damned if you don’t” situation if they lose the election, but challenge the results, and make changes to terms and conditions of employment in the interim.
Interested parties have 60 days to file comments. A public hearing is set for July 18 and 19.