With President Obama’s veto of Congressional action seeking to bar the implementation of the NLRB’s proposed “ambush election” rules, unless a court enjoins the effective date of the rules in one (or both) of the lawsuits currently pending that challenge the rules, on April 14, new rules will go into effect governing the filing and processing of union election petitions (see our post here discussing some of the details of these new rules).
In advance of the effective date, on April 6, the NLRB’s General Counsel released a detailed guidance memorandum explaining how parties and the NLRB will comply with the new procedures in the rules. Although these rules were touted by the Democrat-majority NLRB as necessary to streamline the election process, the GC’s memo is a whopping 36 single-spaced pages, certainly casting doubt on whether anything about the new rules really will make the election process more “streamlined.”
As far as the substance of the memo, it provides section-by-section guidance for each stage of the representation case process and attempts to clarify the new responsibilities and obligations placed on regional directors, hearing officers, and parties in representative elections, including how the accelerated timelines now applicable in those proceedings will be implemented. These changes include:
Changes to filing and service requirements
- A petitioner must serve on all named parties (1) a copy of the petition, (2) a description of the new procedures and (3) a statement of position form.
- Any arguments not raised in the statement of position, which must be filed within seven days of petition filing, will be considered waived unless the party can show good cause for the omission.
- An employer must provide a preliminary list of eligible voters, including detailed contact information, shortly after petition filing.
Changes to election agreement procedures
- Regional Directors now have discretion to determine what percentage of the unit may be deferred for later determination when a party asserts that a certain classification or group of employees should be included or excluded from the proposed bargaining unit.
Changes to hearing preparation procedures
- Hearing officers are instructed to determine whether any issues carry a presumption under NLRB precedent and identify the party that bears that burden.
- Issues such as jurisdiction, labor organization status, appropriate unit, employee status and eligibility formulas are to be addressed in a pre-hearing conference.
Changes to hearing procedures
- Unit scope issues (including multi-employer and multi-facility issues) must be determined before the election.
- Issues of individual eligibility or inclusion may be postponed until after the election, and those employees at issue should be permitted to vote subject to challenge.
Changes to election procedures
- Employers still must post election notices, but must also now distribute the notice electronically to employees if the employer typically communicates electronically with employees.
- The employer is now responsible for serving the voter eligibility list on the regional director and the other parties. The Regional Director will no longer serve the list.
Changes to post-election procedures
- A party must file objections within seven days after the tally of ballots and must specify the reason for each objection along with a written offer of proof identifying the witness(es) who would testify in support of the each objection and what they would say if they provided testimony.
- Board review of post-election disputes will now follow the same procedures as Board review of pre-election disputes.
In light of the substantial changes in procedure that these rules bring, employers should review the new rules and the guidance memo and seek legal advice on the changes before getting involved in any new NLRB representation case after April 14.