NLRB Reissues Proposal For Ambush Elections: Are You Prepared?

On February 6, 2014, the National Labor Relations Board (NLRB) reissued a Notice of Proposed Rulemaking (NPRM) for what has become known as the “ambush election” rules. The proposed rules radically alter well established union representation election procedures that have worked in a highly efficient fashion for decades. While these rules contemplate many technical changes, the core result is that employers will have virtually no time to prepare a considered response to a representation petition or to help employees gather the information they need to make an informed decision.

As detailed below, the Board’s proposed rules would: 1) substantially reduce employers’ ability to have meaningful input regarding the size and scope of the bargaining unit; 2) delay the resolution of most disputes about voter eligibility until after the election; 3) impose upon employers new onerous filing requirements; and 4) effectively shorten the time between the filing of the petition and the actual election. The net effect of the proposed rules is a significant reduction in the pre-election due process typically afforded employers in representation cases and the creation of an environment in which employees will be required to vote without being fully informed of the critical facts.

The main vehicle for most of this change is the pre-election hearing, which has historically been used to resolve legal disputes related to the union’s petition. Under the proposed rules, pre-election hearings would only be conducted to determine the narrow issue of whether a question concerning representation exists. NLRB hearing officers will have authority to enforce that mandate by limiting the evidence employers can submit at the hearing. Accordingly, many issues of individual voter eligibility will be deferred to post-election procedures rather than determined prior to the vote. Thus, employers are well advised to implement a plan of action in advance of a petition being filed.

This article identifies a few of the most significant changes in the NLRB’s proposed rules and examines measures employers should consider to prepare for expedited union elections.

Proposed Change No. 1: Position Statements

Under the NLRB’s proposal, if a pre-election hearing is needed it will be held within just seven calendar days after the petition is filed. During that short time frame, employers would be required to file a written position statement addressing: 1) the Board’s jurisdiction to process the petition; 2) the appropriateness of the petitioned-for unit; 3) any proposed exclusions from the unit as identified by the union; 4) the existence of any legally recognized bar to the election; 5) the type of election (manual or mail ballot); 6) the proposed date, time, and location of the election; and 7) any other issues the employer seeks to raise at the pre-election hearing. Critically, any issue the employer fails to identify in this filing will be waived (i.e., not something the employer can litigate).

Currently, the rules do not specify any set number of days within which the pre-election hearing must be held (although they are currently held promptly). Likewise, the current rules do not require employers to present a written statement of position articulating all potential issues, and thus current rules do not penalize an employer’s failure to raise any and all issues prior to the pre-election hearing.

Employer Action

Employers must recognize that NLRB regional directors and hearing officers will have greater discretion to limit the issues litigated at pre-election hearings, including what evidence is received in the record and whether briefing will be permitted. It appears clear that fewer pre-election hearings will be conducted and, when they are required, they will be shorter in duration with fewer post-hearing briefs likely to be allowed.

As a consequence, employers should conduct an analysis of the potential issues to be resolved during a hearing and then draft model position statements to preserve all potential issues. This exercise will allow an employer to respond quickly, but in a thoughtful manner should a petition actually be filed. Among the issues to evaluate are the following: 1) showing of interest including authentication of cards, timeliness of petition, etc.; 2) NLRB jurisdiction; 3) labor organization status; 4) legal bars to the election; 5) multi-facility and multi-employer issues; 6) expanding and contracting unit issues; and 7) appropriateness of the potential petitioned-for bargaining units.

In drafting position statements on unit issues, employers need to bear in mind the Board’s new “appropriate unit” analysis. In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (Aug. 26, 2011), the Board overturned 20 years of precedent and arguably changed the standard for determining an “appropriate bargaining unit.” Specialty Healthcare encourages small, fragmented units of employees (“micro” units) that are much more likely to be deemed appropriate unless the employer can prove that the employees excluded by the petition share an “overwhelming” community of interest. In combination, the proposed rules and this new NLRB case precedent make it more difficult for employers to challenge the petitioned-for unit.

Proposed Change No. 2: Offers of Proof

Under the proposed rules, employers will also be required to make an offer of proof at the start of the hearing concerning all issues raised in the position statement. The NLRB’s hearing officer will have the authority to refuse to accept any evidence at the hearing to support a particular issue if it is determined that the offer of proof is insufficient to create a genuine issue of material fact.

Currently, the rules do not require employers to make an offer of proof before submitting testimony and evidence at a pre-election hearing. It is unclear how hearing officers will determine whether an issue of material fact has been created.

Employer Action

In response to this proposed change, employers should consider the following steps: 1) prepare outlines of relevant testimony to use in response to requests for offers of proof; and 2) prepare a list of exhibits supporting the issues identified in the offer of proof.  To contest the eligibility of individuals in a proposed unit, the employer must identify them by name and job classification and provide a basis for the proposed exclusion/inclusion.

Proposed Change No. 3: 20% Rule

The proposed rules defer until after the election issues concerning voter eligibility if the hearing officer concludes the issues affect less than 20 percent of all potential voters. Currently, the rules do not provide a bright-line rule and most voter eligibility issues are resolved before the election.

Employer Action

Employers should analyze the optimal bargaining unit(s) and confirm that the available facts support the position they plan to take with respect to the appropriate bargaining unit, which would be appropriate under NLRB case law. The proposed rules and new NLRB precedent make it more difficult for employers to challenge the eligibility of voters.

In addition, employers should identify statutory supervisors and, where necessary, clarify job duties and job descriptions to support supervisory status. Supervisors are not eligible to vote in union elections, are agents of the employer, and their conduct is legally binding on an employer.

Proposed Change No. 4: 25-Day Rule Eliminated

The proposed rules eliminate current requirements that a vote cannot be held sooner than 25 days after the Board’s Regional Director issues a decision and direction of election. Because of this change, regional directors will almost certainly schedule elections to be held sooner after the direction of election than was previously the case. Expedited elections deprive employees of the opportunity to receive information about unions and unionization prior to voting.

Employer Action

The proposed elimination of the 25-day rule will require employers to take certain steps to educate their employees. Specifically, employers should:

• Develop the company’s position on unionization and communicate it to employees with appropriate frequency;
• Be prepared to further communicate with employees as soon as management becomes aware of a union campaign;
• Create a “rapid response” team to develop a campaign philosophy and an internal management communication structure;
• Train “rapid response” team members and line supervisors regarding the NLRB’s new rules and how to legally, but effectively communicate with employees during a union organizing campaign to avoid unfair labor practices; and
• Prepare campaign materials in advance of any petition being filed.

There will be little time under the new rules to develop information about the petitioning union and to properly vet materials to educate employees on the company’s position.

Proposed Change No. 5: Multiple Eligibility Lists

Finally, for almost half a century the Board’s decision in Excelsior Underwear, 156 NLRB 1236 (1966) has required employers to submit, within seven days of either a stipulated election agreement or a Regional Director’s decision and direction of election, a list of the employees considered eligible to vote. Under the current rule, only employees’ names and home addresses are required to be disclosed.

The proposed rules establish new intrusive mandates that expand the information unions must be provided. Assuming an employer believes that a pre-election hearing should be held, it must provide the Board and the union with two separate lists at the time of a pre-election hearing: 1) a list of employees in the challenged, petitioned-for unit, and 2) a list of all employees in a unit the employer contends is appropriate. The lists must include employee names, work locations, shifts, and classifications.

Within two days after either the Regional Director issues a decision and direction of election or the parties enter into a stipulated agreement, employers must serve electronically on the Region and the union an eligibility list that not only includes employee names and home addresses, but also telephone numbers, email addresses, work locations, shifts, and classifications.

Employer Action

Employers should prepare voter eligibility lists and inform employees that the company is legally required to disclose information to the union to prepare them for likely contacts by union organizers.

Conclusion

The foregoing is an overview of only the most significant proposed changes and the action items employers should consider in anticipation that the proposed election rules will become final in whole or in part. Each step is subject to a much more comprehensive discussion and analysis depending on the facts, circumstances, and specific employer objectives.

Note: This article was published in the March/April 2014 issue of the Employment Law Authority.