NLRB Rule Gives Employers More Time Before Union Elections

Allen Smith, J.D. By Allen Smith, J.D. December 13, 2019
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someone casting a vote

​[Editor's note: The effective date of the rule has been postponed until May 31 due to the coronavirus pandemic.]

The National Labor Relations Board (NLRB) announced on Dec. 13 major modifications to union election procedures, significantly lengthening the time between an NLRB regional director's order that there be an election and the election. The final rule takes effect April 16, 2020—120  days after its publication in the Federal Register, which is scheduled for Dec. 18. 

The Society for Human Resource Management (SHRM) "appreciates the NLRB's much-needed clarifications to the 2014 rule. Employers and employees win when there is a fair and reasoned election process that gives employers the time necessary to comply with pre-election requirements while allowing for timely resolution of disputes," said Nancy Hammer, SHRM's vice president of regulatory and judicial engagement.

In 2014, the NLRB issued a broad revision to union election procedures and amended existing rules, significantly contracting the timeline between the NLRB regional director's order that there be an election—called the "direction of an election"—and the election. Previous rules stipulated that there should be 25 to 30 days between the direction of an election and the election.

The board in 2014 said elections should be held as soon as possible.

As a result, NLRB regional directors often issued decisions from pre-election hearings only immediately before the election, and sometimes left some issues—such as voter eligibility—for after the election, according to David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

The final rule provides much more certainty that issues raised prior to an election will be resolved before it, he said.

Under the 2014 rule, the turnaround time between the direction of an election and union elections could be just a matter of days—as little as three days in one instance, said Brian Hayes, an attorney with Ogletree Deakins in Washington, D.C., and a former NLRB member.

Under the new final rule, an NLRB regional director ordinarily will not schedule an election before the 20th business day after the decision from the pre-election hearing and the date of the direction of a union election. This final rule is "largely consistent" with NLRB procedures prior to the 2014 amendments, the NLRB noted.

"Permitting the board to rule on disputes prior to the election will reduce the number of cases in which issues remain unresolved at the time of the election, thereby promoting orderly litigation, transparency, and fair and accurate voting," the board stated.

By permitting litigation of supervisory and unit scope issues prior to the election, instead of deferring them until afterwards, "the final rule removes the pendency of such issues as a barrier to reaching certainty and finality of election results. Under the 2014 amendments, such issues could linger on after the election for weeks, months or even years before being resolved."

Employers Often Challenge Who Is a Supervisor

Litigation of supervisory issues and the scope of the unit is "vitally important," Hayes said.

Supervisors are excluded from coverage under the National Labor Relations Act and ineligible to vote, he explained. If a supervisor was the force behind unionization, the union election process may have been tainted, he said.

Disputes concerning voter eligibility now ordinarily will be resolved at the pre-election hearing and resolved by the NLRB regional director before an election is directed, the NLRB noted.

Identifying who is a supervisor isn't always easy. A "lead position" might be a supervisor excluded from the act's coverage at one company, while a lead position at another company might be judged a worker covered by the act, noted Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla.

Scope of Unit

"The current process is rushed" and results in bargaining units where it's unclear prior to the election who might be unionized and who might not be, he added.

This is problematic partly because employees consequently aren't fully informed about who their fellow unionized workers would be prior to the election. If they knew that ahead of time, Wilson said, their vote might change.

A union might seek to represent a warehouse, for example. It might be uncertain whether the bargaining unit would include drivers, dock staff and office workers, Hayes noted.

Scope questions can be geographic as well. A main facility might seek unionization, but there might be a related facility a half-mile away. The employer may challenge whether the related facility also is to be included in the bargaining unit.

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

Voting Lists

Another change in the final rule is that the employer now has five business days to provide the required voter list to the union following the direction of an election. Under the prior rule, the employer had only two business days. "Permitting additional time for the voter list will increase the accuracy of such lists, promoting transparency and efficiency at the election and reducing the possibility of litigation over the list," the NLRB said.

If a voter list is wrong, Wilson said, it can invalidate an election.

Employers must gather the names, addresses and phone numbers of employees who will vote, which raises privacy concerns because employees may not want this information shared with a union. The employer nonetheless must provide the information to the union.

Other changes in the proposed rule include:

  • The pre-election hearing generally will be 14 business days from notice of the hearing and may be postponed for good cause.
  • The regional director will no longer certify the results of an election if a request for review is pending or before the time has passed during which a request could be filed.

Dissent

NLRB member Lauren McFerran, whose term ends on Dec. 16, dissented. She said there had been few difficulties with the 2014 rule, despite concerns about it. She emphasized that the new final rule was rewritten without any notice to or comment from the public, saying it violated the Administrative Procedure Act.

However, Hayes said the new final rule addressed problems created by the 2014 final rule and its changes made sense.

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