The NLRB's new election rule is the "Mount Everest of regulations: Massive in scale and unforgiving in its effect"

Melissa Schilling Iowa Employment & Labor Law Dickinson Law Des Moines Iowa

Posted on 12/15/2014 at 12:48 PM by Melissa Schilling

For the second time this month, the National Labor Relations Board (NLRB) took action to boost unions' organizing power under the National Labor Relations Act (NLRA). Immediately following the NLRB's decision in Purple Communications, Inc., which allows employees to use their work email for organizing communications, a divided NLRB adopted a new 'Final Rule' to speed up union elections. In a nutshell, the new rule will make it easier for unions to successfully organize because many union elections will now be held within just 10 to 21 days after the union's petition is filed. This shortened time frame limits an employer's ability to run a campaign and effectively communicate with employees about unions and unionization. The new 'Final Rule' – some 184 pages – was published in the Federal Register on December 15, 2014. 79 FR 74307 –74490.  It will become effective on April 14, 2015. While the NLRB's majority claims that the new rules would 'modernize the representation case process,' the dissenters call the rules the 'Mount Everest of regulations: massive in scale and unforgiving in its effect.' Arguably, the new rules constitute the most sweeping regulatory change ever implemented by the NLRB and, ironically, follow the failed push for the Employee Free Choice Act, a bill that would have amended the NLRA, in part, by eliminating the time between the petition and election entirely. Among other things, the new rules adopt several new procedures in representation cases that might come as a surprise to Iowa employers:

• Issues of Voter Eligibility and Bargaining Unit Appropriateness Deferred: Under the new rules, most disputes concerning voter eligibility and/or inclusion in an appropriate unit will be resolved after the election. As a result, several important issues will remain unresolved at the time of the election, such as the supervisory status of certain employees and whether they are part of the voting unit. In turn, this will interfere with an employer's ability to conduct an effective campaign because the employer will not know which employees it can require to participate in the employer's campaign.

• Expedited Pre-Hearings and Detailed Position Statements: In the limited cases where a pre-election hearing is held, the hearing will generally be held only eight (8) days after a hearing notice is served. In addition, employers are now required to file a detailed position statement within one business day of the pre-election hearing, which includes information such as (1) any exclusions from the bargaining unit; (2) any additions to make the bargaining unit appropriate; (3) detailed reasons for contesting voter eligibility; and (4) any other issues the employer intends to raise at the hearing.

• Employee Lists and Contact Information: Under the new rule, employers that request a pre-election hearing must now provide unions with two separate lists. An employer must provide the union with an initial employee list with its position statement. In the initial list, the employer must provide the union with: (1) the names of all employees and their job information in the petitioned-for bargaining unit; and (2) the names of all employees in the proposed unit that the employer contends is appropriate. The second list, which employers must provide the union, is to be given to the Union no later than two business days after an election agreement or direction of election. This second list was formerly known as the 'Excelsior' list; however, the time frame for providing the list has been shortened from seven days to two days and the type of information required is more extensive. In the second list, the employer must now provide the union with the available contact information of each employee, including home addresses, personal phone numbers, and email addresses eligible to vote in the election.

Take Aways: We have always generally felt that an employer should communicate its philosophy regarding 'unionization' to its employees on a regular basis and that a 'we do not believe a union is in your best interest' campaign should be ongoing. That said, in light of these new procedures, a private sector Iowa employer would be well advised to not wait until a petition is filed to think through what its response might be to union organizational activity. It is suggested that an Iowa employer: (a) determine which employees are considered 'supervisory' under the NLRA and train those employees on what is expected of them  both 'do's' and 'don'ts' during a union campaign and do so on an ongoing basis; and (b) develop messages to not only inform employees about what it believes about unions and why, but to also educate employees about their rights and some of the tactics the employees may face before the employer hears of the activity. If you have any questions regarding the NLRB's new election procedures or strategies for your organization, please contact a member of Dickinson's employment law group.  

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed. 


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