Staying up to date on changes to NLRB Election Rules

By Dan Barker, Attorney at Law, Jackson Lewis, P.C.

In 2015, the National Labor Relations Board (“NLRB”) enacted rules that shortened the amount of time that an employer has to campaign after a union files an election petition with the NLRB.  Some of those rules have recently been dialed back.

Before 2015, employers had about 42 days after a petition was filed to campaign before the vote.  The 2015 rules shortened this period to about 21 days.  When the time frame between petition and election is shortened, an employer has less time to develop its campaign message and educate employees about what choosing union representation really means and what is on the line.

The 2015 “quickie election” rules also required employers to jump through a number of procedural hoops in the first few days after an election petition was filed.  For example, they required the employer to post a Notice of Petition within two business days after receiving the petition and often required the employer to email the notice to all potential unit employees.  The rules also required the employer to appear at a hearing eight days after the petition was filed and to file a detailed position statement the day before the hearing.  If an issue or argument was left out of this required statement, that argument would be waived forever.  Some unions would even serve onerous pre-hearing subpoenas as a way to further burden the target company and to distract it from hearing preparation.   And then, as soon as an election was directed, the employer had only two business days to provide the union with a comprehensive listing of all unit employees, their home addresses, email address, cell phone numbers, and work shifts.

From a practical perspective, all these procedural requirements meant that the first ten days after an election petition usually involved focusing on the NLRB’s process rather than on the employer’s campaign message.  Many companies can’t even get a conference call together on five days’ notice, much less plan a comprehensive legal strategy.  Thus, the mad scramble of the first ten days meant that the company usually ended up with less than two weeks to actually campaign; not much time to get the message out at all.

In late 2019, the Republican-dominated NLRB published new rules that substantially eased the burden on employers.  The rules removed the requirement that elections be held as soon as practicable after a petition, pushed back the hearing to 14 days, and gave the employer more time to file its statement of position.  They also gave the employer more time to prepare the voter list.

These important reforms were scheduled to go into effect on May 31, 2020, but the AFL-CIO filed a legal challenge to the rules in a last-ditch effort to maintain the advantage that the Obama NLRB had given them.  At the eleventh hour, before the rules went into effect, a U.S. District Court issued a decision that upheld some of the reforms and struck down others.  The court said that the NLRB could validly enact changes to its procedural rules but said that some of the changes it had announced were substantive and therefore, could not be changed through the legal process that the NLRB used when it enacted the new rules.  The NLRB plans to appeal the ruling.  In the meantime, however, the NLRB issued a memorandum explaining which changes would survive and which changes would not be enacted.

Many of the changes that survived the court challenge provide employers with precious additional time to consider its legal position and strategy at the outset of a campaign.  Specifically, the NLRB explained that hearings would not be scheduled until fourteen business days after the petition and that employers do not need to file their position statements until the eighth business day after service of the hearing notice.  The NLRB also made it clear that briefs would be allowed after the hearing.  These changes take some of the immediate pressure off of employers and gives them some valuable time to consider the issues raised by the petition as well as to plan campaign strategy at the same time.

The NLRB also explained, though, that elections would still need to be scheduled as soon as practicable after a petition and that voter eligibility lists are still required to be sent to the union within two business days after an election is directed.  Thus, elections will still be pushed through on an expedited basis.  In other words, the pressure is still on and employers have limited time to campaign.

WHILE THE NEW RULES PROVIDE EMPLOYERS WITH MORE SPACE AND TIME TO OPERATE IN AFTER A PETITION IS FILED, THE DAYS AFTER A PETITION IS FILED ARE STILL EXTREMELY STRESSFUL AND DEMANDING.

While the new rules provide employers with more space and time to operate in after a petition is filed, the days after a petition is filed are still extremely stressful and demanding.  Thankfully, however, there are steps that employers can take to reduce the pressure a bit.  Like any emergency action plan, avoiding the emergency in the first place is the best approach, but a little contingency planning can pay huge dividends when the pressure mounts.

First, employers should make themselves “hard targets” for organizing in the first place.  While paying market-competitive wages and providing great benefits is a good start, it falls far short of the mark. When employees are valued and listened to, they are less likely to seek outside representation.  The second step is to ensure that supervisors know how to talk about unions and are not too scared to communicate and answer employee questions.  The third step is to create an action plan for what to do if organizing occurs or if a petition is filed.  This plan can include implementing a rapid-action team prepared in advance with clear understandings about what managers will play what roles.  Part of this action plan includes ensuring that the company is ready to answer common information requests from the NLRB and is ready to prepare a voter eligibility list in a limited amount of time.

In the construction industry, being ready to prepare this voter eligibility list is important because the list of eligible employees does not just include those employees who are currently working.  Instead, NLRB’s eligibility formula looks back for up to two years and includes employees who worked 30 days in the past year, or 45 days in the past two years.  It excludes employees who quit or who were discharged for cause.  Putting this list together within two days after the NLRB directs an election makes for a stressful time and some late nights.  Employers can reduce the stress by maintaining contact information in a single system and coming up with a plan for how the company can quickly identify employees who meet the eligibility criteria and those who do not.

In summary, the new NLRB election rules provide employers with additional time to plan.  For the foreseeable future, though, elections will continue to occur within a short time window, and we will not be going back to the days where employers had six luxurious weeks to campaign.

Daniel D. Barker is a Principal in the Madison office of Jackson Lewis P.C. He can be reached at daniel.barker@jacksonlewis.com or 608-729-5598