On December 15, 2014 the National Labor Relations Board (“NLRB”) adopted new rules regarding the procedures applicable to processing representation cases. These new rules went into effect on April 15, 2015. The new rules are an effort by the NLRB to streamline and modernize the representation case procedures, while increasing transparency and standardizing the NLRB process. The NLRB explained that the purpose of the amendment was to remove unnecessary barriers to the fair and expeditious resolution of representation cases by simplifying the process and providing more transparent and uniform elections.
Notable Changes Under the New Rules:
- Permits electronic filing and transmission of election petitions/other documents;
- Employer is required to post a Notice of Petition for Election containing more detailed information on the filing of the petition and employee rights within two days of service of the petition.
- Employers are required to provide additional contact information (personal telephone numbers and email addresses) in voter lists, to the extent that information is available to the employer, in order to enhance a fair and free exchange of ideas by permitting non-employer parties to communicate with voters about the election using modern technology;
- The non-petitioning party is required to respond to the petition, to generally state their positions before the pre-election hearing opens. The petitioner is required to respond to the issues raised at the opening of the hearing.
- Only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. The regional director may defer all other issues to the post-election stage.
Practical Effect of the New Rules:
One of the stated purposes of the new rules was to keep employers from delaying the election process and thereby discourage union activity. To accomplish this goal, the amendments have severely restricted an employer’s ability to make pre-election challenges.
According to a recent analysis of election cases, in the first 90 days after the rules took effect, 755 petitions had been filed, which was up from 687 during the same period last year. Interestingly, the number of elections actually conducted during the same period decreased from 255 to 234. The average length of time between filing a petition and conducting an election dropped from 37 to 27 days. The rate at which unions won elections held steady at around 64 percent.
One of the potential explanations for the increase in petitions, but decrease in elections, is that unions are filing petitions in order to obtain the personal information of the employees to use later. However, employers must still deal with the petitions that are filed, which is increasingly difficult under the new rules because employers have less time to articulate their positions; this means employers need to be prepared in advance. The new rules also disadvantage employees, who have less time to examine and weigh all of the facts as to whether supporting the union is in their best interests.
Because the rules are still new and most of the decisions remain unpublished, it is unclear if the trends found in the preliminary statistics will continue or greatly impact union success in the long term. However, what is clear is that the new rules have placed significant hurdles in front of employers attempting to challenge unlawful conduct committed by unions prior to an election