GMCS
Editorial: This is very representative
of what our clients have been experiencing over the last 30 days. Employers should be aware of their ER
functions.
May 14th marked the one-month anniversary of the
effective date of the NLRB’s Amended Representation Election Rules (“amended
rules”). That day, the Regional Directors for NLRB Regions 2 (New York,
NY), 22 (Newark, NJ), and 29 (Brooklyn, NY) discussed their offices’
experiences processing representation petitions filed since the amended
rules took effect on April 14th.
With respect to the questions of how the amended rules
are actually affecting representation petitions and elections, while one month
may not be representative, the data to date does offer some insights that will
be of interest to employers, unions, and practitioners. Perhaps the most
interesting fact is that in these three Regional Offices, there were NO
hearings held on petitions filed since the amended rules took effect. In
every case, the parties entered into a stipulated election agreement or a
consent agreement, or the union withdrew its petition. Out of a total of 32
petitions filed in these regions during the one-month period, eight went to an
election and 24 were withdrawn without an election.
What is not clear at this point is how many of the
petitions were withdrawn after employers filed Statements of Position
challenging the proposed units as inappropriate. Under the amended rules,
if an employer contends that the petitioned-for unit is not appropriate and
should include additional classifications and/or locations, the employer must
provide both the Regional Office and the petitioning union with the names,
classifications, work locations, and shifts of the employees whom the employer
believes must be included in the unit. Once a union receives that employee
data, it may very well choose to withdraw its petition and then expand its
organizing to include the additional employees. It is foreseeable that, in at
least some cases, unions may be filing petitions with the expectation that the
units will be challenged, in order to get such valuable data.
With respect to the question of how quickly votes are
taking place under the amended rules, Regional Directors Karen Fernbach (Region
2), David Leach (Region 22), and James Paulsen (Region 29) reported that the
elections based on petitions filed after the amended rules took effect were
scheduled for between 25 and 30 days from the petition date. This
data confirms the expectation that the amended rules would result in faster
elections than under the long-standing rules that they replaced. Under
the former rules, elections typically took place between 36 and 42 days after
the filing of a petition.
The Regional Directors also reviewed the procedures under
the amended rules, which were recently summarized in General Counsel Memorandum 15-04 issued by
the Board’s General Counsel Richard F. Griffin, Jr. Under the amended rules, employers
not only must post a notice informing employees of the filing of a petition
within two days but also must provide the Board and the petitioning union with
a list of the names and job titles/classifications of all employees in the
petitioned-for unit and all other employees whom the employer believes should
be included in the unit.
The fact that there have not been any hearings in these
three Regional Offices in the first month of the amended rules is probably a
reflection of the fact that the amended rules make it much harder for an
employer to have a hearing. The Regional Directors confirmed the fact that
employers that want to raise issues, whether about unit composition, supervisory
status, or other issues, are generally being told that they may not call
witnesses but rather should make offers of proof to establish a record and
basis for future appeals and challenges to the Board’s findings.
The Regional Directors acknowledged that, even where
employers wish to make offers of proof at pre-election representation hearings,
hearing officers are under instructions not to burden the R case record with
protracted offers of proof and not to allow parties to delay the hearing
“unnecessarily.” Further, the Regional Directors stated that they were
under orders not to allow hearings to go on for too long or permit any
post-hearing briefs. All argument would have to be made orally at a
hearing.
According to the three New York area Regional Directors,
unless the employer has raised eligibility issues as to more than 20% of the
total voter complement, all unit placement and eligibility issues will be
reserved for the challenged ballot process at the election or for a
post-election hearing. Obviously, if the challenged ballots are not
determinative, issues as to those voters will never be heard. While this
benchmark is not included in the amended rules, it has been mentioned on a
number of occasions by representatives of the NLRB at various training programs
conducted for the labor and management bars throughout the country. It
appears that this 20% standard has now replaced the 10% threshold that the
Board relied upon under the prior rules and procedures.
The employer’s Statement of Position must be
filed and served on the union within seven days of the filing of the petition
and not later than noon on the day before the hearing is scheduled. Any
issues not so raised will be waived.
On Friday, May 15, the day after the Regional Directors
spoke, U.S. District Court Judge Amy Berman Jackson in Washington, D.C., heard
argument on plaintiffs’ motion for summary judgment in the lawsuit brought by
the U.S. Chamber of Commerce and other business groups challenging the validity
of the amended rules under the National Labor Relations Act (“NLRA”). The
hearing focused on the plaintiffs’ claims that the amended rules violate the
NLRA and the Administrative Procedures Act. While it is generally not possible
to predict from argument how the court will rule, Judge Jackson appeared
skeptical that the plaintiffs had established that they were entitled to
summary judgment at this stage, suggesting that the litigation is likely to
continue.
The amended rules will present significant challenges for
employers and their counsel. More importantly, all of this will be
layered onto the much shorter period between the petition and the actual
voting, requiring employers to focus year round on appropriate practices
and communications to their employees concerning the benefits of maintaining a
non-union status.
We will continue to monitor and share data concerning the
impact of the amended rules.
Source: Management
Memo
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