On April 14, 2015, the National Labor Relations Board’s “quickie” election rule took effect (despite pending lawsuits challenging the legality of the rule). Earlier this month, the Board’s general counsel issued a 36-page memorandum to provide guidance on the new rule, which we summarize in some detail below in an effort to help employers navigate these new waters. The memorandum serves as a reminder that non-union businesses should consider implementing a labor relations strategy now so they can effectively, lawfully, and quickly respond to a notice of petition for election if they receive one under the new rule. An in-depth discussion of the general counsel’s memorandum is provided. The highlights are as follows:
Under the new rule, a labor union or employee can ask an NLRB regional office to hold a union election by e-filing an election petition with the office demonstrating that at least 30 percent of employees in a certain unit of the employer’s workforce wish to have a union represent them. If the regional office processes the election petition, it will send the company a notice of petition for election, a statement of position form with a deadline for filing it, and usually a notice of election hearing. The employer must post the notice of petition for election within two days of receiving the notice of hearing. The regional office generally will schedule a pre-election hearing eight days from the notice of hearing. Or, instead of sending a notice of hearing, the regional office may send the company a notice to show cause as to whether a pre-election hearing is necessary.
Statement of Position
By noon of the day before the pre-election hearing (or sooner if the hearing is more than eight days away and the employer has at least seven days notice of the position statement’s due date), the employer must e-file a position statement containing: (1) issues it wishes to litigate; (2) the classifications, locations, or other employee groupings that it believes must be added to or excluded from the petitioned-for unit; (3) a list of employees in the petitioned-for unit; and (4) lists that identify employees that should be added to or deleted from the petitioned-for unit.
Submitting a timely and complete position statement is critical under the new rule, as the employer generally cannot litigate any issue it fails to raise in its position statement except the board’s statutory jurisdiction. The regional director has the discretion to permit the company to amend its position statement for good cause (e.g., changed circumstances of which the company did not know and could not have known at the time it submitted its position statement).
When appropriate, the region should hold a pre-hearing conference. If the parties cannot reach an agreement upon all issues so as to render a pre-election hearing unnecessary, the Board agent should have the parties enter into written stipulations regarding the issues upon which they agree.
The purpose of a pre-election hearing is to determine whether a question of representation exists.
Issues that the employer can litigate in a pre-election hearing, if raised in its position statement, include: (1) whether the union is a statutory labor organization; (2) whether there is a legal bar to holding an election; (3) whether the petitioned-for unit is appropriate; (4) multi-employer and -facility issues; (5) whether the unit is contracting or expanding; (6) whether the employment status of employees in the unit is in dispute; (7) whether the unit covers seasonal employees; (8) whether guards or professional employees should be included with other employees in a unit; (9) whether special formulas must be used to decide which employees are eligible to vote; (10) whether the unit covers craft and healthcare employees; and (11) whether the individual who filed the election petition was a statutory supervisor who cannot unionize. The employer may also raise jurisdictional issues, such as whether the employer falls outside the board’s power (e.g. it is a political or state subdivision, or religious organization) during the pre-election hearing whether or not it raised the issue in its position statement.
Disputes concerning a particular individual’s ability to vote ordinarily will not be litigated or resolved before an election as the rule specifically gives the regional director discretion to defer litigation concerning individual eligibility or inclusion issues until after the election. Although there is no bright line rule, the guidance suggests that a regional director should address an individual eligibility or inclusion issue at the pre-election hearing if the issue places 25 percent or more of the unit in issue.
Decision & Direction of Election
Soon after the pre-election hearing, the hearing officer will issue a report – not a recommendation – to the regional director. The regional director will issue a pre-election decision along with a direction of election and notice of election, as appropriate, by e-mail or facsimile (or overnight mail if a party did not provide an e-mail or fax number). The direction of election ordinarily will contain the election details (e.g., date, location, time). In setting the election date, the regional director should consider the following factors: (1) the date the parties desire to have the election; (2) operational considerations; (3) what date would facilitate employee participation; (4) the prompt and timely conduct of the election; (5) whether the union waives the 10-day period it is entitled to have the voter list; and (6) whether the election ballots and notices need to be in a foreign language.
Notice of Election
The notice of election will identify all employees who will vote subject to challenge, by, for example, listing their job titles, shifts, work locations, and other descriptive factors. The board agent conducting the election must challenge any voter who the regional director has allowed to vote subject to challenge unless there is an election agreement in place in which case the burden is on the parties to raise voter challenges. Like the notice of petition for election, the employer must post the notice of election for all eligible voters to see at least three full working days (excluding holidays and weekends) before 12:01 a.m. of the election day. And, like the notice of petition for election, in addition to physically posting the notice, the employer must electronically “post” the notice for all eligible voters with whom it customarily communicates electronically to see. Here too, a business’s failure to post the notice of election timely is grounds for setting aside an election in which it prevails if a timely objection is made on that ground.
After the regional director issues a direction of election, the employer must provide the regional director and the other parties a list of all eligible voters, which includes a section that separately identifies all employees voting subject to challenge. The list must include the employees’ names, home addresses, home phone numbers, personal e-mail addresses, and personal cell phone numbers in addition to their job classifications, shifts, and work locations.
Post-Election Challenges and Objections
An employer has seven days from the date that the board agent tallies the election ballots to raise post-election challenges and/or objections to conduct that occurred during the election or that impacted the election results (even if the remaining challenged ballots are sufficient to impact the election results). When an employer raises post-election challenges and/or objections, it must file them with the regional director and serve them upon the other parties with a proof of service. Additionally, the employer must provide the regional director (not the other parties) an offer of proof along with its challenges and/or objections that identifies its witnesses and their anticipated testimony. The regional director has discretion to extend the employer’s time for filing the offer of proof, but only for “good cause.”
In deciding whether to hold a post-election hearing, the regional director should evaluate whether the evidence regarding a challenged voter “raises substantial and material issues,” and, regarding an objection, whether the evidence “could be grounds for setting aside the election if introduced at the hearing.” If the regional director certifies the election results without holding a post-election hearing on the challenges and/or objections, the certification will be final unless the Board grants review.
If the region holds a post-election hearing, it generally must do so within 21 days of the election ballot tally unless the parties agreed upon an earlier date or the regional director consolidates the post-election hearing with an unfair labor practice proceeding before an administrative law judge.
After the post-election hearing, the hearing officer will prepare a report to the regional director. The parties have 14 days from the hearing officer’s report to file exceptions to the report. The party opposing the exceptions has seven days from the last day when the excepting party could have filed exceptions (unless the regional director extends the time) to file an answering brief with the regional director and serve it upon the other parties.
Whether or not a party files exceptions to the hearing officer report, the regional director will issue a decision concerning the hearing officer’s report. Unless the regional director remands the case to the hearing officer for additional hearing, the regional director will issue a certification of the election results, which will be final unless the board grants review.
Request for Review
Under the new rule, the process for seeking board review of the regional director’s pre- and post-election decisions is the same. A party can file a request for review with the board within 14 days of the regional director’s final disposition (e.g., certification of the election results or order that any challenged ballots be counted). Accordingly, an employer can wait until after the election to challenge the regional director’s pre- and post-election decisions. (The board only will grant a request for review if there are “compelling reasons,” and will only grant expedited consideration of a special request, such as a stay of the election, upon “a clear showing that it is necessary under the particular circumstances of the case.”)
A party that files an unfair labor practice charge and wishes to block the election petition must ask the region to block the petition, file a written offer of proof that identifies the witnesses and their anticipated testimony, and make its witnesses available promptly.
Prior to an election, parties can enter into an election agreement regarding various issues to avoid litigation costs. For example, the agreement, which is subject to the regional director’s approval, can propose the appropriate unit, individuals voting subject to challenge, the deadline for providing the voter list, and the date, location, and time of the election.
Notably, an employer’s ability to challenge the election process can be impacted if an election agreement is in place. For instance, where the parties have entered into a full consent agreement, the regional director’s determination of pre- and post-hearing disputes are final and not subject to board review. Where there is a consent election agreement in place, the regional director’s rulings on challenged ballots and election objections are final and not subject to board review. In fact, where there is a consent election and the regional director consolidated the representation case with an unfair labor practice proceeding for hearing, the administrative law judge will sever the representation case and transfer it back to the regional director after issuing his/her decision. Additionally, where there is an election agreement in place, the parties – not the board agent conducting the election – bear the onus of challenging anyone who the regional director or board has permitted to vote subject to challenge.
For answers to any questions regarding this blog or with regard to the General Counsel’s memorandum generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.