This is a client bulletin by David Phippen that we emailed to subscribers yesterday afternoon. I'm re-posting it here, in case you don't already subscribe to Constangy's bulletins. (If you don't and would like to, please send me (Robin) an email, and we'll put you on the list. Subscription is free.)

By David Phippen

Metro Washington D.C. Office

As we alerted you last week, on Monday the National Labor Relations Board published its long-awaited final rule on so-called "quickie" or "ambush" elections. The final rule is similar, but not identical, to a prior Board attempt in 2011. The new rule will take effect April 14, 2015, but employers will need to be prepared well before the effective date.

The new regulations are expected to have a substantial effect on the union representation election process unless their use is blocked by a court or by legislative action. Most significantly, the period between a petition and the election will be shortened, probably to a period between 13 and 21 days. This shortened period will make it more difficult for employers to inform employees before the election about relevant issues and the employer's reasons for opposing a union.

Not surprisingly, the vote to adopt the final rule was split along party lines. Democrats Chairman Mark Gaston Pearce, and Members Nancy Schiffer and Kent Hirozawa, who voted to issue the final rule, characterized the changes as simply modernizing, streamlining, and standardizing Board procedure, increasing transparency, and reducing unnecessary litigation. Republican Members Harry Johnson and Philip Miscimarra voted against the rule.

Key changes brought about by the final rule are summarized here:

GENERALLY

Compressed election period of approximately 13-21 days

Currently, the time between the filing of an election petition and the election is about 42 days. The final rule does not specify a maximum or minimum period, but we expect the effect of other provisions (discussed below) to result in "compression" of that time frame to about 13-21 days. (See timeline below).

Electronic filings

As of now, the NLRB still requires parties to use paper for petition filings and certain notifications. Under the new rule, electronic filings and communications will be the norm. Election petitions, as well as the requisite 30 percent showing of interest in the petitioned-for unit, can be filed with the Board and served on the employer electronically.

PRE-ELECTION PERIOD

Notice of Petition must be posted within 2 business days

The current rule does not require the employer to post a Notice of Petition after receiving it from the Board. Under the new rule, the employer must post the Notice, and in some cases send it to all affected employees electronically, within two business days after the Board serves the employer with the Notice. Failure to post or serve the Notice in a timely fashion may be a basis for setting aside an election on an appropriate objection.

Pre-election hearing 8 days from service of Notice, and no post-hearing briefs

Currently, a pre-election hearing is scheduled within 14 days of the filing of the election petition. Under the new rule, the Regional Director must schedule the hearing "for a date 8 days from the date of service [on the employer] of the notice" of hearing and the petition, "absent special circumstances." The new rule does authorize a maximum of two, two-day extensions of the hearing date (maximum extension of four additional days).

Under current rules, the parties are entitled to file post-hearing briefs within seven days of the pre-election hearing. Under the new rule, post-hearing briefs are allowed only in the discretion of the Regional Director. In other words, the "default" will be no post-hearing briefs, which will have the effect of cutting seven days from the period between the petition and the election.

Pre-hearing statements of position on scope and composition of voting unit, and presumed waiver

The current rule has no equivalent to the following provisions in the new rule. Under the new rule, the parties will be required to submit – by noon of the business day before the pre-election hearing – statements of position on the issues to be heard at the pre-election hearing. A party who fails to take an "anticipatory" position on the scope or composition of the voting unit will generally be considered to have waived its objections to the proposed unit. This "waiver" provision is expected to adversely affect employers more than unions, because the default voting unit will usually be what the union initially selects. The rule is also likely to detract from the Board's fact-finding function, and may limit the legal arguments by precluding the parties from raising issues based on facts that are disclosed for the first time at the hearing.

Employer must give preliminary voter list to union 1 business day before pre-election hearing

This is a new requirement under the new rule. No later than noon on the last business day before the pre-election hearing, the employer must give the Board and union a list of the names, job classifications, work locations, and work shifts, of all employees in the petitioned-for unit. This requirement is expected to benefit unions by ensuring that they receive employee information at the earliest possible stage in the campaign. An employer who fails to provide the list in a timely manner will not be allowed to contest the appropriateness of the bargaining unit, or the eligibility or inclusion of any individuals. Non-compliance can also be the basis for an election objection and rerun election.

Voter eligibility determinations deferred until after election

Under current rules, the employer can contest the eligibility of voters, and have those issues resolved, before the election takes place. Under the new rule, the election may take place first, and any challenges may be resolved later. A prior version of the rule provided that eligibility issues could be heard before the election if the eligibility issues affected 20 percent or more of the petitioned-for voting unit. That exception does not appear in the final rule.

The final rule gives the Regional Director discretion to decide what issues will be heard at the pre-election hearing and limits the scope to issues relevant to whether a "question concerning representation" exists. This is expected to remove consideration of significant issues related to eligibility of voters and supervisory status.

By deferring resolution of most eligibility issues until after the election, the new rule appears to downplay or ignore the fact that in many cases, questions of eligibility to vote and inclusion in the unit (for instance, unit inclusion of employees in a certain job classification) are inextricably tied to the questions of unit appropriateness and showing of interest sufficiency, each of which is critical to the ultimate issue of whether a question concerning representation exists.

Whether the number of voting eligibility or unit inclusion issues is great or small, they are often critical to allowing the employer to conduct a lawful and effective campaign and to employees in forming their opinions on whether and how to vote. Employers, as a practical matter, often need clear indication before the election as to whether lead persons, foremen, or employees in similar roles are "employees" for purposes of the National Labor Relations Act (meaning that they are eligible to vote and are protected under the NLRA), or instead are "statutory supervisors" (meaning that they are ineligible to vote, not subject to the NLRA's protections, and may campaign for the employer). An employer who does not know where these "gray area" employees stand is more likely to commit an unfair labor practice inadvertently or – out of an overabundance of caution – avoid lawfully including them in management team communication efforts. Keeping "supervisor status" in limbo until after an election appears to be a deliberate attempt to put employers at a disadvantage and set them up for unfair labor practice charges and union election objections.

Shortened deadlines, and more information required in Excelsior list

Currently, the employer must provide the Board with the so-called "Excelsior list" seven days after an election is ordered, and the Board then provides a copy to the union. The new rule requires that the employer provide the list toboth the Board and the union, moves the deadline up to two business days after the election order, and requires the employer to provide more information than before. The current rule and the new rule both require that the employer provide names, home addresses, work locations, shifts, and job classifications for the voters in the "election unit." Under the new rule, the employer will also be required to provide available phone numbers (including cell phone numbers if applicable) and email addresses, which obviously gives the union greater ability to communicate with employees. Failure to timely provide the eligibility list (and any of the information on the list) is a basis for a possible election objection by a union.

Posting Notice of Election and email to employees

Currently, the employer must post a Notice of Election three days before the date of the election. This is essentially unchanged under the final rule (which requires that the posting be done no later than 12:01 a.m., three working days before the date of the election). But the new rule also requires that, in some cases, the employer also send the Notice of Election to eligible employees by email. Failure to timely post or send the Notice of Election may be the basis for election objection and a re-run election.

No right of review of election order until after election

Under current rules, a party has 14 days after the date of the Regional Director's direction of election to request, by right, Board review. Under the new rule, the parties can request a review, but the Board does not have to allow it, and the request for review (or even a review, if granted) does not automatically postpone the election schedule.

Elimination of 24-day minimum waiting period for review

The NLRB's current regulations provide that a Regional Director should not "normally schedule an election until a date between the 25th and 30th days after the decision" directing an election, which allowed the Board to rule on any request for review filed in the 14-day period before the election is held. That scheduling regulation is eliminated in the new rule.

AFTER THE ELECTION

Objections and offer of proof due 7 days after votes tallied, hearing within 21 days, and review by full Board is discretionary

Currently, the parties have seven days after the votes are tallied to file any objections, plus seven additional days to submit evidence in support of their objections. If the Board finds that the evidence could be a basis for the Board to overturn the election, it should order a hearing.

Under the new rule, any election objections and an offer of proof in support of those objections must be filed within seven days of the tally. Any post-election hearing involving objections or challenges must be held within 21 days or as soon as practicable afterward. In addition, review of a Regional Director's decision by the full Board will no longer be available as a matter of right, meaning that the Regional Director's decision may be final with no review.

TIPS FOR EMPLOYERS

Given the head start that unions typically have in election campaigns and the compressed schedule of the new regulations, employers should take lawful steps now. Here are some suggestions, all of which should take place before you are aware of organizing activity:

1. Review job titles, job descriptions, and organizational charts, and identify which employees clearly satisfy the NLRB test for supervisory status and which do not.

2. Evaluate operations, and consider voting unit issues in any organizational structuring. Among other things, consider the scope of potential voting units and placement of employees in those potential units.

3. Review handbooks and policies for compliance with the NLRB's recent rulings to avoid interference charges and election objections that might result in a rerun election.

4. Train front line supervisors and other management on lawfully and effectively communicating with employees about unions and sharing the employer's position. The training should also help supervisors and managers identify potential problems.

5. Designate an employer management action response team to be responsible for a campaign if and when a union organizing effort arises.

6. Practice positive employee relations and ensure that employees feel they have a means to communicate with the employer to address issues of concern.

7. Prepare in advance draft campaign materials and a campaign calendar to meet the compressed schedule of the new regulations.

8. Understand the relevant local labor market economics and dynamics, and workforce and community leaders.

9. Coordinate with your labor counsel on 1-8, above.

GOING FORWARD

The rule will take effect April 14, and unions may increase their organizing efforts immediately after that date to catch employers off guard. We expect to see court challenges to the new rule, and there are ongoing efforts in Congress to rein in the Board, which the Republicans view as an out-of-control advocate for organized labor. However, significant legislative changes favorable to employers are unlikely for the remainder of President Obama's term because the President would be expected to veto any efforts to undo the Board's action. Thus, the prudent course for employers is to hope for the best, but prepare for the worst: hope for court action, but be ready for these regulations when they take effect in April.