Getting Ready for the New NLRB Election Rules
All petitions for representation filed with the National Labor Relations Board (NLRB) on or after April 14, 2015 will follow the new election procedure. To ease the transition, the NLRB General Counsel issued a memorandum explaining the new procedure and providing guidance to Regional Directors and practitioners as to how the procedure will play out.
The procedure still starts with the Union filing a petition for recognition, but under the new rules, the Union will be required to provide the showing of interest along with the petition in order for the petition to be processed. If a copy of the showing is provided, the original showing must be received by the Region within 48 hours. The Union will also have to serve the employer (by hand, fax, email or, as last resort, overnight mail) a copy of the petition (without the showing of interest), a notice of the Board’s procedures for representation cases and the new Statement of Position form.
The Regions will set hearings 8 days after the employer is served with these documents plus a Notice of Hearing and Notice of Petition for Election to be posted by the employer. This hearing will only be rescheduled upon a showing of special circumstances or extraordinary circumstances. This new requirement makes it very important for the Union to be prepared to go to hearing, if necessary, on the 8th day after the petition is served. Stipulated Election Agreements are still likely to be the norm, but the internal NLRB guideline of no more than 42 days between the petition and the election has been eliminated.
The hearing will be streamlined and resolution of some matters will be put on hold until after the election. The Decision and Direction of Election, issued by the Regional Director after the hearing, will generally include the date, time, and location of the election and will set the election for as soon as practicable. The mandatory 25 day waiting period for potential review has been eliminated. Two days after the direction of election, the employer will be required to provide the voter list. This list will include the name, home address, work location, shift, classification and—when available—personal email address, and home and mobile phone numbers.
After the election, any objections to the election, along with an offer of proof supporting the objections, must be filed within 7 days. Hearings on objections or challenged ballots will regularly be heard 21 days after the election.
There is also a change to blocking charge procedures. Instead of filing a request to proceed, if a Union files an unfair labor practice (ULP) charge that it believes should block a pending petition from being processed, the Union will also have to file a blocking charge form. This should be filed with an offer of proof setting out the evidence the Union intends to provide in support of the ULP.
The goal of the new rule is efficiency and modernization of the process. Implementation will result in more streamlined pre-election hearings and better and faster information to the Union. There are new burdens and opportunities under the rule for both Unions and employers. Consult with your labor law counsel to start the process.
Copies of the Rule, the General Counsel’s Memorandum, and the new forms can be found on the NLRB’s website: www.nlrb.gov