Tag: union election

Union Election Procedures

Union Election Procedures to Change in 2020

In December 2019, the National Labor Relations Board finalized a rule to modify its union election procedures. This action will slow down the election process, giving companies more time to respond to election petitions. It ends a five-year reign of so-called “quickie elections.”

The new procedures will be in place beginning April 16, 2020.

2014 “Quickie-Election” Rules

The NLRB substantially changed its election procedures in 2014. Under the Obama Administration, the Democrat-led NLRB revised the rules to expedite elections. Those changes were primarily intended to reduce companies’ opportunity to respond to union organizing efforts. In other words, making it easier for employees to unionize.

In addition to condensing the timeline, the 2014 rules created a new disclosure requirement for employers. They required companies to provide extensive information about their workforce and response to the election petition in writing often in one week.

More Balanced Approach

As of April 16, 2020, the rules will change again to give employers more time to respond. The now Republican-led Board has not, however, completely reverted to the pre-2014 union election procedures.

There are many nuances to these procedures. Here are just some of the most impactful changes:

More Time Before Pre-Election Hearing

The 2014 rules provided for a pre-election hearing as soon as 8 days after the union filed an election petition.

The new rules delays hearing to the 14th business day. As before, the NLRB Regional office can postpone the hearing for good cause.

Statement of Positions Remains

Employers understandably did not appreciate the new requirement of preparing and submitting a Statement of Position after receiving an election petition. However, the NLRB has decided to keep that requirement in place. But they are making a couple of compromises in this area.

First, employers will now have 8 business days to file the Statement of Position. Under the 2014 rules, they often only had 7 calendar days, with a hearing to follow the next day.

Second, unions must now also file a written Statement of Position. The union has until 3 days before the hearing to do so.

Expanded Scope of Pre-Election Hearings

The 2014 union election procedures limited the subject matter of pre-election hearings to relatively few subjects. Fundamentally, they were limited to determining whether a question of representation exists. This required an appropriate bargaining unit to be identified, but did not allow employers to litigate individual voter eligibility or inclusion in the bargaining unit before the election. If the parties did not mutually agree on those issues, the NLRB would decide them after the election, if necessary, depending on the results.

Under the new rules, voter eligibility and unit inclusion issues usually will be part of the pre-election hearing process. This includes litigation over supervisory status. That question can be significant, as supervisors are not eligible to join a unionized bargaining unit. Moreover, employers can rely on supervisors as part of their election preparations. Thus, it is valuable to know who does and doesn’t qualify in that capacity under the National Labor Relations Act before the election takes place.

The new rules will also bring back the right for parties to call witnesses at the pre-election hearings. The 2014 rules limited the ways parties could present evidence at this stage.

Post-Hearing Briefs

With a focus on quick elections, the 2014 rules eliminated written post-hearing briefs by the parties. They would just be something else taking time to prepare, read, and respond to, after all!

The new union election procedures will allow the parties to summarize their positions in writing after the pre-election hearing. They have 5 business days after the hearing to submit briefs. The hearing officer can allow up to 10 additional days.

Scheduling the Election

Before the 2014 rule changes, union elections usually occurred 25-30 days after the direction of an election. That means, once the parties resolved all preliminary matters, either mutually or by hearing decision, the election would take place about 4 weeks later.

The 2014 union election procedures, moved that timeline up considerably. They required a Regional Director to “schedule the election for the earliest date practicable . . . .” That resulted in reducing the time between petition and election from 38 days to 23 days. The NLRB shows these statistics here.

The rules effective April 16, 2020, will return closer to the pre-2014 timeline. They provide that regional directors “normally will not schedule an election before the 20th business day after the date of the direction of election.”

More Time for Voter Lists

Once an election is scheduled, the employer must give the union a list of all eligible voters with contact information. Under the 2014 rules, companies only had 2 days to do so following the direction of an election. Now they will have 5 days.

Good and Bad News for Employers

Most companies should welcome these changes to the NLRB’s union election procedures. If nothing else, it gives you more time to respond if you do receive an election petition. And most employers will welcome the time to review their options in hopes of staying union-free.

But, there is a potential short-term downside to the rule changes. Significantly, they don’t take effect until April 16, 2020. Before then, the 2014 union-friendly rules remain in effect. This may result in unions rushing to begin election proceedings under the “quickie election” rules.

Companies that have any concern of a potential union organizing effort should evaluate the heightened possibility of an election petition in the first quarter of 2020. It is always better to be proactive if you want to keep a union out. This primarily means doing the right thing by your employees. But it also includes knowing the relevant procedures, legal parameters, and other logistical best practices. If you have any concerns in this area, you should consult with an experienced labor attorney sooner rather than later.

 

For more on what the NLRB has been up to, check out our upcoming webinar: NLRB 2020: Updates for All Private Sector Employers

Union Decertification

Union Decertification

Private sector employees unhappy with their union can initiate a decertification process through the National Labor Relations Board.  If successful, this process removes the union as the employees’ exclusive bargaining representative and relieves them of the obligation to pay dues or other fees. Once the union is out, employees can deal directly with their employer concerning terms and conditions of employment.

Common reasons union members vote to decertify their union are they don’t believe the union is worth the dues, they prefer to resolve issues directly with management, or the union is no longer useful. Employees can also decertify their union to replace it with another union.

No Company Involvement

Companies cannot be involved in the union decertification process. Efforts to decertify a union cannot occur on work time, in work areas, or while using company equipment. If management assists in any decertification procedures, the employer may have committed an unfair labor practice. Employees wishing to decertify their union can seek outside assistance.

Filing Period

Employees may only attempt to decertify their union at certain times.

Employees cannot try to decertify a new union until one year after its certification. Once a year passes, employees may only ask for decertification during a 30-day “window period.” This window is typically open between 60 and 90 days before the expiration of a collective bargaining agreement. For healthcare institutions, the window period runs from 90 to 120 days before contract expiration.

Once a collective bargaining agreement expires or remains in effect longer than three years, employees may ask for decertification at any time.

Decertification Petition

The process of decertifying a union begins with a petition demonstrating the desire to decertify. Any employees in the bargaining unit, including non-union members, may sign the petition. Signatures must occur off work time and at a non-work location. The petition must bear the signatures of at least 30% of the bargaining unit for the NLRB to conduct a secret ballot election. (In some cases, an employer may withdraw recognition of the union if at least 50% of the employees in the bargaining unit sign a properly worded petition demanding withdrawal.)

Employees should submit this “showing of interest” petition to the NLRB regional office. Then the employees must serve certain forms on the employer and the union. The required documents can be electronically filed and served, mailed, or delivered in person.

Decertification Election

Following receipt of a valid decertification petition, the NLRB will administer a secret ballot election. If at least half of the employees vote against the union, it will no longer represent the employees.

Employers and unions cannot ask how employees are voting. Harassment or threats by either side about voting can constitute unfair labor practices and may overturn the election results.

Public Employees

Since the National Labor Relations Act only covers the private sector, employees of public employers must follow different procedures. A recent Supreme Court decision (Janus) could create a wave of public sector union members walking away from unions (at least by withdrawing financial support). If so, private-sector employees might become more eager to do so as well.

Employer Cautions

Remember that management cannot organize a decertification effort. Companies who learn of employee interest in potentially removing a union should consult with experienced labor counsel to review applicable parameters. Any violations of the National Labor Relations Act by supervisors could unduly undermine employees’ ability to choose to be union-free.

 

For more on what it means it to have a union in your workplace, check out this webinar on Union Basics for Employers.

2017 NLRB Decisions

2017 NLRB Buzzer Beaters

Republicans (temporarily) lost majority control of the National Labor Relations Board when Chairman Philip Miscimarra’s term expired on December 16, 2017. But not before they pulled off some 2017 NLRB fireworks!

Facing a 2-2 party split to begin 2018, Republican Members Marvin Kaplan and William Emanuel joined the outgoing Chairman in issuing pivotal rulings in the last days of his term. Here’s a quick summary of some of the most important 2017 NLRB policy shifts.

New Election Rules?

Not yet. But the road is paved.

On December 13, 2017, the NLRB issued a request for information from the public regarding the agency’s union election procedures. Specifically, the Board asked for information regarding the 2014 amendments to the rules. Those were promulgated by a Democrat-majority Board under President Obama, leading to what many have dubbed “quickie elections.”

The request for information itself does not change anything. However, it does strongly suggest a potential change in course. Once President Trump nominates and the Senate confirms a new Republican member to the NLRB, Members Kaplan, Emanuel, and their new colleague could take further action to revise the election rules. The result would likely be more time between filing of petitions and elections taking place.

Read here for more details on the request for information.

More Reasonable Restrictions on Employee Conduct

Under the previous administration, the NLRB said that employers could not have policies requiring employees to be “respectful”.

That was only illustrative of the extent to which the Obama Board objected to standard employment policies of the types long found in many employers’ employee handbooks.

The Obama NLRB also particularly enjoyed regulating comparatively new “Social Media” policies. Various Democrat-controlled panels routinely struck down policies, or at least portions of them, that seemed to most employers to be perfectly reasonable means of conducting business and avoiding undue attacks on companies from their own employees.

On December 14, 2017, the Miscimarra-chaired Board effectively reversed numerous Obama-era decisions by changing the legal test upon which they were decided.

A 2004 NLRB decision reasoned that even if a rule doesn’t “explicitly restrict” an employee right under the National Labor Relations Act, the rule may still be unlawful if employees would “reasonably construe the language” to restrict activity that the Act protects.

In a case involving Boeing, the 2017 NLRB (with both Democrats dissenting) has now rejected that standard and replaced it with a “balancing” test. Going forward the NLRB will now weigh “the nature and extent of the potential impact on NLRA rights” against “legitimate justifications associated with the rule.” (You can read the full decision here.)

The predictable impact of the new test will be greater protection of employers’ rights to maintain appropriate control over their business.

Relaxing the Joint Employer Doctrine

In 2015, the NLRB, over the objection of Miscimarra and fellow Republican Member Harry I. Johnson III, created a broad standard for determining when separate business entities simultaneously “employ” the same employees. In other words, when two different companies are “joint employers”. The critical question affects various issues under the National Labor Relations Act. These include union representation and liability for unfair labor practices.

In another December 14, 2017, 3-2 Board decision, the NLRB announced it was returning to an earlier test that “reflects a common-sense, practical understanding of the nature of contractual relationships in our modern economy”. The restored test will depend on which business(es) have “direct and immediate” control over terms and conditions of employment. It dismisses analysis of “indirect” factors that the Democrat majority introduced in 2015. (You can read the full decision here.)

Among other situations, this change in the joint employer doctrine will significantly affect franchised businesses. There are, for example, many NLRB cases contesting whether McDonald’s Corporation is a joint employer of its independent franchisees’ employees.

Eliminating Micro-Units

In 2011, the NLRB issued a ruling in Specialty-Healthcare that has permitted unions to organize smaller subsets of an employers’ workforce. Essentially, the Obama Board would accept most any bargaining unit containing employees who share some “community of interest”. The employer had the burden of proving that additional employees share an “overwhelming community of interest” in order to enlarge the scope of a proposed bargaining unit.

The new line of cases beginning in 2011 benefited unions seeking to organize, because they did not need to win the support of as many employees within a workplace. Indeed, they had greater latitude to pursue bargaining units that happened to coincide with employees who favored union representation. Pockets of co-workers who opposed the union could be ignored.

On December 15, 2017, however, the Miscimarra-led Republican majority reinstated the NLRB’s traditional community of interest standard in determining what bargaining units are appropriate. Under this restored test, the Board will evaluate “whether the employees in a petitioned-for group share a community of interest sufficiently distinct from the interests of employees excluded from the petitioned-for group to warrant a finding that the proposed group constitutes a separate appropriate unit.” (You can read the full decision here.)

2017 NLRB Makes Way for 2018

President Trump will have the opportunity to appoint his third NLRB member by the beginning of his second year in office. That is somewhat remarkable considering that Board members hold 5-year terms.

There’s no obvious reason to doubt that the newest Board member will agree with these 2017 NLRB reversals. He will likely join Members Kaplan and Emmanuel in reversing other Obama-era decisions, giving employers more latitude to manage their workplaces.