On December 15, 2014, the NLRB issued its new final rule amending its representation-case procedures. The rule was published in the Federal Register and will take effect on April 14, 2015.
The NLRB conducts employee elections in the workplace to determine whether employees will choose to be represented by a labor union. The NLRB processes petitions filed by employees, unions and employers, and the NLRB is responsible to investigate the representation petitions to determine if and when an election should be held among a particular group of employees.
The NLRB’s representation commences with the filing of a petition. The petition will trigger an investigation, and the NLRB Regional Office will schedule a hearing on issues related to the petition. The parties can raise a variety of issues in the hearing, and there is a post-hearing procedure that can extend the legal battling for an additional month. The time frame for the NLRB to conduct an election is supposed to be within forty-three days of the filing of the petition. However the hearing and post-hearing procedure can often render that time frame unrealistic.
The new representation rules are designed to eliminate the legal sparring that surrounds the filing of representation procedures. The changes appear to focus on three areas: the filing process, the scope of the hearing, and the post-hearing process.
Filing Petitions and other documents:
Parties will be permitted under the new rule to e-file the petition. The filing party will be required to serve a copy of the petition on any party identified in the petition, as well as an NLRB description of representation-case procedures and a Statement of Position form. One of the provisions of the new rule is to require the non-filing party (usually the employer) to file the Statement of Position one day ahead of the hearing, setting forth any issues that the non-filing party seeks to raise. The Statement of Position must include the voter eligibility list (which will now include email addresses and phone numbers of potential voters). The voter eligibility list will identify prospective voters by job classification, shift and work location. The filing party must respond to the issues in the non-filing party’s Statement of Position at the outset of the hearing.
The NLRB will now permit e-filing and delivery of other documents related to the representation process, including election notices.
The Hearing Process:
The NLRB will limit the hearing to address only those issues necessary to determine whether an election should be held. Issues pertaining to the eligibility of prospective voters will be deferred to the post-election process, with the expectation that oftentimes those issues will be rendered moot by the election result.
The Post-Hearing Process:
The Regional Director will have the discretion to limit the parties to oral argument of their positions and to disallow post-hearing briefs from the parties. The election will not be automatically stayed (currently the election is stayed to give the parties the opportunity to file a request for review of the Regional Director’s decision). The parties will now be afforded the opportunity to wait on the outcome of the election before deciding whether to file a post-election challenge to any pre-election rulings of the Regional Office. The post-election review will be limited to those issues raised by the parties, and the NLRB will exercise discretion to review issues not raised by the parties.
Historically the NLRB representation process has been a fertile ground for extensive litigation. Employer-side advocates have developed a well-honed system for conducting their anti-union campaigns by taking full advantage of the opportunities for litigation and delay.
The overall tenor of the new rule appears designed to restrict the litigation opportunities that cause delays in the conduct of representation elections. However, we have seen initiatives of this sort before, and the process has changed slowly if at all in the past. Practitioners will have to see if the new rule encourages a different sort of obstructionist behavior. It is not hard to imagine that employers faced with a short deadline to create a list of prospective voters will load the list with any available names and with little regard to whether the list is truly reflective of the ultimate bargaining unit. In addition, there is no doubt going to be an aggressive legal challenge to the rule, and it is far from certain that the rule will survive scrutiny by the courts.
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