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by Jennifer Brown Shaw and Julia C. Melnicoe | The Daily Recorder | Feb 19, 2015

The National Labor Relations Board is the federal agency responsible for administering the National Labor Relations Act, the law allowing unions to bargain collectively. The Board has issued new rules that will revamp union election procedures effective April 2015. The revisions are designed to accelerate the election process, which will make it easier for unions to prevail.

Overview of the Election Process

When a union wishes to represent a group of employees, it generally seeks an election supervised by the NLRB. The election process typically begins when a union files a petition with one of the agency’s regional offices. The petition must include evidence that at least thirty percent of the employees in the group that the union seeks to represent (called the “bargaining unit”) are interested in collective bargaining (that is, union representation).

The regional director schedules an informal conference to determine if the union and employer can agree on a variety of issues, including whether the union’s proposed group of employees is “appropriate,” as well as the date and terms of the election.

If the parties can’t reach an agreement, the regional office may hold a formal hearing on certain issues, such as the composition of the bargaining unit. Other issues may be litigated, including whether the Board has jurisdiction over the employer.

Regarding bargaining units, a key issue is whether there is a sufficient “community of interest” among a proposed group of employees; that is, sufficiently similar employment terms and conditions. Additionally, not all employees can be considered part of the bargaining unit. For instance, employees who qualify as “confidential” employees, supervisors, and “guards” may be inappropriate to include.

Following the conference or hearing, the regional director determines whether appropriate bargaining units can be established. If so, the director will define the bargaining unit and direct the election. A party can request review by the NLRB.

The Current Election Rules

Up until now, the time between the filing of a petition and election varied considerably, depending upon the region and pre-election disputes. The NLRB’s default election rules give the regional director discretion in setting conference, hearing, and election dates. Parties may also submit briefs regarding their positions in the seven days following the hearing as a matter of right. Depending on the director’s decision, the election date can be briefly delayed to allow the Board to consider any appeals.

Employers have been criticized for using these variables to their advantage. This is because in many cases, a union has reached its maximum level of employee support at the time the petition is filed. Employers typically campaign vigorously before the election takes place to educate undecided employees about the downsides of unionization. Consequently, briefs and appeals delay the election, and are an opportunity for the employer to campaign against the union.

The New Rules

The new rules primarily shorten the timing of decision-making following the filing of the petition. They also restrict what factors may slow down the election process.

For example, except in especially complex cases, the regional director will now be required to set a pre-election hearing within eight days after a petition is filed. Parties may file written briefs following the formal conference only if the director thinks they are necessary. And, once the director orders an election, a request for review of the regional director’s pre-election decisions will not automatically delay the election to give the opportunity for the NLRB to make a decision.

The director will have broad discretion to defer disputes over eligibility or inclusion in the bargaining unit until after the election if he or she finds such issues do not have to be resolved in order to determine if an election should be held, such as where only a few individual employees may be affected.

Other new obligations and changes include:

  • Employers must post the Notice of Petition for Election within two business days after the regional NLRB office serves the notice of the petition.
  • The union must submit a position statement with its petition to the Board, and employers must submit a similar statement prior to the pre-election hearing. The employer’s position statement must provide a list of prospective voters (i.e., eligible employees), their job functions, shifts, and locations to all parties and the NLRB regional office.
  • If the employer fails to address a particular topic of concern in its position statement, it waives its right to present evidence on that topic during the hearing.
  • Once the regional director orders an election, the employer must provide a voter list. The new rules obligate employers to include the employees’ phone numbers and email addresses, if available, in addition to physical addresses. That information gives the union easier, unsupervised access to the voters.
  • The NLRB has broader discretion to decline appeals following elections.

What the New Rules Mean for Employers

By the time a union files a petition, it already has garnered support among a significant number of employees. The short election schedule means that employers will have little time to persuade employees to vote against unionization.

Employers concerned about a unionized work force must begin preparing for an election before the union files a petition. Employers can take several steps well in advance. Education is key. Most managers working in the private sector do not understand their rights and obligations under the National Labor Relations Act. Most employers do not know what to do if a union requests the right to represent employees. And, employers do not know how to win a union election.

Unions are invigorated and are seeking to represents employees in industries they formerly ignored. Employers interested in remaining union-free should commit resources to ensure they may do so.