In our new Act Now Advisory, “NLRB Adopts Expedited Election Rules, Effective April 15, 2015,” we report on the National Labor Relations Board’s new rules for representation elections. These rules will substantially shorten the time between the point when a union files a petition for a vote and the timing of the vote, severely limit the right of employers to litigate important issues before an election is held, and are expected to result in more union wins in representation votes. We include steps that employers may want to consider taking in advance of April 2015, in order to adapt to the new reality of ambush elections.

Following is an excerpt:

After a series of false starts, on December 12, 2014, the National Labor Relations Board (“NLRB” or “Board”) adopted a 733-page final rule (“Final Rule”) that will significantly change the Board’s longstanding union election procedures and eliminate many of the steps that employers have relied on to protect their rights and the rights of employees who may not want a union. Cumulatively, the amendments in the Final Rule, which will take effect on April 15, 2015, will tilt the scales of a union election in labor’s favor by expediting the election process. Among the most important changes contained in the Final Rule are the following …

Read the full advisory here.

For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were largely split between the labor unions applauding the NLRB’s proposed rule on making elections faster; whereas, the trade associations and management attorneys emphasizing that the NLRB’s proposed rule was unnecessary and a solution in search of a problem.

EBG attorney, Kara M. Maciel, represented the voice of NGA on three separate panels. First, she argued that the NLRB’s proposed rule requiring employers – for the first time – to submit a written position statement within 7 days of the union’s petition setting forth the employer’s entire legal argument, or risk waiver later, is unduly burdensome and risks that the process leading to a pre-election hearing will become more adversarial and less focused on reaching a negotiated pre-election stipulation. Under current procedures, over 90% of petitions are stipulated to without a pre-election hearing, but under the NLRB’s proposed rule, employers could feel pressured to go to a hearing in light of the written position statement requirement.

Second, Maciel testified that the election date should not be accelerated from the current 34 day median to 10-21 days contemplated by the rule. “Hasty decisions are not good decisions” and she noted that “common sense dictates that the greater the time an individual has to inform himself, and to reflect upon and consider all aspects of a decision, the more likely the decision will be a true reflection of the individual’s interests.” NGA is concerned about the due process rights impairing an employer’s protected 8(c) rights under the National Labor Relations Act if there is not sufficient time to communicate with employees about a union petition for representation.

Finally, Maciel expressed concern over the proposed rules compulsory disclosure of employee’s personal and confidential e-mail accounts and phone numbers on voter lists. The non-consensual disclosure constitutes a gross invasion of employees’ privacy and opens employees up to potential use and abuse of their personal information.

The NLRB will now consider all the written and oral comments submitted by the public on the proposed rules; however, it is widely expected that the NLRB will adopt the rules as proposed. Following the rule-making process, it is likely that trade associations could seek to enjoin implementation of the rule through a court challenge. In the meantime, all employers should brace themselves for the rule and implement training and education for their management team on how to respond to union organizing.

For more information on NLRB’s two-day public meeting, please click here.

Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.

The panels will address the following topics:

  • Panel B.2: Requirement for written statement of position
    Address issues related to the proposed requirement for a written statement of position.
  • Panel E.1 & E.3: Election date
    Please describe the standard to be applied for scheduling an election. The proposed rules state that the regional director should select an election date which is “as soon as practicable.” If you disagree with this standard, please describe the standard you would apply. Specify whether you think the rules should include a minimum or maximum time between the filing of the petition and the election, and, if so, how long this time should be. Also address whether the proposed rules adequately protect free speech interests; if you believe they do not, please state specifically how the proposal can be adapted to adequately address the matter.
  • Panel C: Voter lists
    Address whether or how the rules should address voter lists.

During the open meeting, April 10 and 11, catch the live stream at http://www.nlrb.gov/openmeeting.

By Kara M. Maciel

Today, EBG client, National Grocers Association (“NGA”), filed a request to speak at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.

NGA is the national trade association representing retail and wholesale grocers that comprise the independent sector of the food distribution industry.  NGA requested to speak on 4 key issues being contemplated by the NLRB:

  1. Timing of the Election.  NGA opposes any reduction in the scheduling of the election because hasty decisions don’t make good decisions.  Free speech is the cornerstone of the Act’s statutory protections, and the NPRM eviscerates an employee’s opportunity to become fully informed.  Instead of deliberately evaluating all relevant information, employees will be rushed into voting without a full opportunity to receive facts, contemplate the consequence of their decision, and make an informed choice whether to be represented by a union.  By the filing of a petition, a union has had ample time to have convinced 30% of the proposed unit to sign cards; how can the other 70% be expected to make an informed decision in a few days?  Employees faced with making such an important workplace decision should be able to do so in an environment conducive to reflection and thought, not one that sacrifices deliberation for speed.  The NPRM forces employees to act in haste and repent at leisure.  There is no legitimate analysis supporting a need to hasten the time before an election and certainly nothing supported by empirical evidence from the Board, especially when its own data confirms that the median time between a petition and election was 38 days.
  2. Compulsory Disclosure of Private Email and Phone Numbers.  NGA is concerned about the NPRM’s proposal of compulsory disclosure on voter lists to include personal and confidential e-mail accounts and phone numbers.  This non-consensual disclosure constitutes a gross invasion of employees’ privacy.  To require employers to collect that information after the direction of an election and share it with third parties without any safeguards on how that information is handled would be unduly burdensome and intrude on employees’ privacy rights.  At a minimum, employees must be allowed to opt-in to share private information with outsiders.  Only with their specific consent can the Board not place at risk the privacy interests of workers. Even more disconcerting to employees’ privacy interests is how the information could be used.  It is not inconceivable that individual organizers could abuse this information, causing irreparable harm to employees.  As security breaches become widespread with identify theft as the fastest growing white collar crime, companies must be ever vigilant in protecting their employee’s personal information.  There are no safeguards contemplated by the NPRM to protect against unforeseen abuses with this private information.  Identity theft, harassment or other abuse of personal information can happen without the union’s knowledge, and there is no mechanism for the Board or anyone else to effectively sanction individuals against misuse.  Disclosing private email and phone numbers to labor unions within 2 days after direction of an election does not further the Act’s statutory purposes.
  3. Changes to Litigated Issued During Pre-Election Hearing.  There are due process problems contemplated by the NPRM’s changes to the litigated issues during the pre-election hearing.  The heart of a representation petition is whether there is a question concerning representation.  The Board must determine if 30% of the unit has made a showing of interest, and the Board cannot fulfill this statutory function without knowing the unit’s composition.  To direct an election when disputes exist over voter eligibility of less than 20 percent of the unit would create vast uncertainty and confusion.  Ultimately, an election would occur that conceivably could include supervisors, who are statutorily excluded.  If the individuals in dispute did not reach the 20 percent threshold, and the union won, the result would find supervisors represented by a labor union.  How can employees make an informed decision about representation when they are confused about who else will be in the unit?  The prejudice created by postponing voter eligibility challenges until post-election is akin to a litigant not being able to disqualify a juror until after the verdict is rendered.  The NPRM fails to consider the potential impact that the Board’s ruling in Specialty Healthcare will have on determining who should be included or excluded from a petitioned-for unit, and creates more questions than answers for employers and confusion during the election process as to who is eligible to vote.
  4. Waiver of Issues at Pre-Election Hearing.  One of the main changes contemplated by the Board would require the parties to raise every possible argument at the initial election hearing, or risk waiving those arguments.  Accordingly, within days of the union filing a petition, the employer must get a handle on the organizing drive, including who is being proposed to be included in the unit (and whether such a unit is proper) and make an informed decision as to what issues to raise at the hearing, just a few days later.  Small business owners are not armed with legal staff and it would necessarily take time to locate, retain and consult appropriate labor counsel on the significant business and operational issues posed by the union’s petition.  By requiring employers to put everything in a statement of position at a pre-election hearing or be subject to a waiver increases the adversarial nature of the proceeding and makes it even less likely that the parties will resolve disputes early in the process.  Fearing that they may waive issues not set forth in writing, employers may be less inclined to enter into stipulated or consented to elections.    Accordingly, employers should be able to supplement or amend their statement of position as facts and the election process develops.

Management Missives

As previously reported, it is with intention that the Board’s proposed rules will significantly alter the entire union representation election process in favor of unions. Although it is a proposed rule at this point, and the Board will be accepting public comment through April 7, 2014, with a public hearing that same week, it is likely that the final rule will be issued not long thereafter. To prepare for the Board’s “ambush” election rules, employers should promptly adopt any or all of the following strategies:

  • Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
  • Review and update workplace policies that become relevant during union organizing such as solicitation/distribution, electronic communications, and social media.
  • Assess your workforce for potential bargaining unit issues like identifying who are supervisors and which employees share a “community of interest.”
  • Train your managers and supervisors on recognizing early warning signs of union organizing and responding lawfully to union campaigns.
  • Contact legal counsel with any questions or for any assistance with ensuring you are prepared to respond to an organizing campaign consistent with the proposed rules.

By Steven M. Swirsky, Adam C. Abrahms, Kara M. Maciel, and Casey M. Cosentino

As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.

As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts to “fix” the representation election process in its favor. Most significantly, the Board’s current attempt only comes after having its more modest 2011 attempt struck down by a federal judge.

The present proposal is identical “in substance” to the Board’s original proposals first contemplated on June 22, 2011, and as such are more aggressive than the Rules ultimately adopted on December 21, 2011, and later struck down. The Board claims the proposed amendments are necessary to, among other things, facilitate the swift resolutions of questions concerning representation, simplify representation-case procedures, eliminate needless litigation, and consolidate all requests for review of regional directors’ determinations into one post-election request. However, if adopted as written, the proposed rules will radically up-end 75 years of Board practice and make it considerably easier for unions to organize employees and win elections.

History of Proposed Rule

The Board first contemplated the proposed amendments in a notice of proposed rulemaking on June 22, 2011. Following a period of public comment, the Board issued a final rule on December 22, 2011, that adopted some of the proposed amendments but deferred other more controversial aspects of the proposed amendments for further consideration. The final rule was immediately challenged in federal court. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 21, 24 (D.D.C. 2012). In May 2012, the D.C. District Court struck down the final rule on procedural grounds. In response, the Board suspended the implementation of changes to its election representation case process.

Proposed Amendments to the Election Procedure

To the favor of unions, the proposed amendments announced this week would significantly change the existing procedures for union elections in the following ways:

  • Permit electronic filing of election petitions.
  • Require pre-election hearings to be held within 7 days after a hearing notice is served, shortening the time period between the petition and election.
  • Require employers to file a detailed statement of position on any and all issues involved in the petition before the hearing commences (i.e., within 7 days of first receiving notice of the petition). Failure to present an issue in the statement would constitute waiver of the issue in all future proceedings.
  • Grant hearing officers the authority to limit the issues to be heard at the hearing, depriving employers of their ability to litigate valid legal/factual positions prior to an election.
  • Defer resolution of voter-eligibility issues to post-election challenges until after an election, replacing the longstanding practice of having a pre-election hearing to determine such issues. This will allow unions to claim that some supervisors should be included in the bargaining unit, which could prevent an employer from utilizing them in the campaign to communicate its own position to the employees they supervise.
  • Grant hearing officers the authority to deny an employer the ability to file a post-hearing brief.
  • Eliminate an employer’s ability to seek Board review of a Regional Director’s rulings, which would also reduce the time between the petition and election.
  • Shorten the time for holding an election to as early as 10 days after the Regional Director’s direction of election (down from the typical 25 to 30 day minimum that now exists)
  • Require an employer to provide the NLRB with the list of voters’ names and addresses within 2 days after the Regional Director’s direction of an election instead of 7 days.
  • Require employers to provide the phone numbers and email addresses of all eligible voters as well as specifying each employee’s work location, shift, and classification. Currently, employers must only provide name and mailing address to the NLRB, which it then provides to the union. Since unions will use be able to use this information during the days before the election, it is feared that instances of organizers harassing and coercing employees will significantly increase.
  • Grant the Board discretion to deny review of post-election rulings. Currently, the Board is required to decide post-election disputes.

The Board’s False Pretenses and True Intended Harm of “Ambush” Elections

The Board asserts these election “fixes” are necessary to address alleged long delays in the representation process; however, such delays are rare. To the extent that the NPRM seeks to address election delays, objective data of NLRB elections conducted between 2008 and 2010 shows that such delays occurred less than 10 percent of the time. In fact, currently median time between petition and election is only 38 days and almost all elections occur within 56 days. The Board’s current proposal, however, could shorten that period to 10 to 21 days, which essentially eliminates the ability for employers to make a full and meaningful presentation of their position or employees to make a truly informed choice.

Typically, union organizers campaign under the radar for months before a petition is filed and unions wait until they believe that they have the support of the majority of the employees in a unit before they file a petition. Shortening the election period so drastically will erode an employer’s ability to respond to the union’s propaganda and communicate its position on union representation. Employees will vote without having the benefit of hearing the employer’s position. This contravenes the express purpose of the Act, which is to protect employee rights— not union rights and would gut the right that employers are granted by the Act to communicate their positions to employees. This one-sided campaign will almost certainly result in more election victories for unions and less real choice for employees.

Management Missives

It is with intention that the Board’s proposed rules will significantly alter the entire union representation election process in favor of unions. Although it is a proposed rule at this point, and the Board will be accepting public comment through April 7, 2014, with a public hearing that same week, it is likely that the final rule will be issued not long thereafter. To prepare for the Board’s “ambush” election rules, employers should promptly adopt any or all of the following strategies:

  • Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
  • Review and update workplace policies that become relevant during union organizing such as solicitation/distribution, electronic communications, and social media.
  • Assess your workforce for potential bargaining unit issues like identifying who are supervisors and which employees share a “community of interest.”
  • Train your managers and supervisors on recognizing early warning signs of union organizing and responding lawfully to union campaigns.
  • Contact legal counsel with any questions or for any assistance with ensuring you are prepared to respond to an organizing campaign consistent with the proposed rules.

 

The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test.  A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation. Indeed, a dual-marked ballot might also mean that the employee who completed the ballot actually did not want to take a position either way.   The treatment of such a single dual-marked ballot can have dramatic consequences in a close election, as was the case in Providence Health & Services.

Facts.

In Providence Health & Services, Service Employees International Union Local 49 (“Union” or “SEIU”) was seeking to organize and represent a group of employees at Providence Health & Services—Oregon (“Employer”).  In an NLRB representation election, a union must receive a majority of the valid ballots cast to be certified.  If the vote is a tie, the union loses and will not be certified as the bargaining representative.

An election took place in December 2018, which after the Regional Director’s decision regarding two controversial ballots, resulted in 384 votes for the Union, and 383 votes against union representation.  However, the Employer appealed to the Board and challenged a single ballot which was dual-marked and which the Employer argued should therefore not have been counted:

The Regional Director, citing to previous Board precedent, and in line with an administrative law judge’s recommendation, had concluded that the “smudging” along the diagonal line in the “NO” box was what he concluded to be an obvious attempt by the employee to erase the marking.  Accordingly, the Regional Director held that it was the clear intent of the employee to vote “YES.”    Consequently, for a moment in time, it looked as though the Union had won the election by a single vote.

The Regional Director’s ruling, like the ALJ’s recommendations, relied on a line of cases finding “a dual-marked ballot is void unless the voter’s intent can ‘be ascertained from other markings on the ballot (such as an attempt to erase or obliterate one mark),’” to find the smudging was intent.  Quoting TCI West, Inc., 322 NLRB 928, 928 (1997), enf. denied 145 F. 3d 1113 (9th Cir. 1998).

The Board’s New Bright-Line Rule.

However, in reviewing this case, the Board reviewed and overruled decades of complex, convoluted, and contradictory precedent on how to interpret a dual-marked ballot.  Finding “it difficult to discern any consistent approach,” the Board concluded that any “attempts to determine voter intent based on additional markings, attempted erasures, smudges, or other ostensible ‘corrections’ are impermissibly subjective.”  The Board reasoned that they themselves have no special expertise in judging such markings and thus, ultimately, each decision regarding a dual-marked ballot resorts in speculation.  Furthermore, any speculation by the Board is inconsistent with other established Board precedent directing the Board to avoid speculation regarding any such markings when deciding the validity of a ballot.

Accordingly, the Board concluded that “the Board and our stakeholders will best be served by the establishment of an objective, bright-line rule pertaining to dual-marked ballots.”  The new rule throws out decades of contradictory and speculative precedent in favor of this simple bright-line rule:

[W]here a ballot includes markings in more than one square or box, it is void. 

This new bright-line rule will be applied retroactively.

Consequently, in the case at issue, the Board voided the   ballot at issue as it included markings in more than one square, resulting in 383 votes for the union and 383 votes against representation.  As a union is required to receive a majority of the votes to be certified and therefore the union did not receive the necessary majority.  Under the Board’s one year election bar doctrine, that means that the union cannot file for another election in that unit for at least one year.

Change in Official Election Ballots.

In addition to the new bright-line rule, the Board decided to modify the official election ballot language in order to attempt to reduce or eliminate instances of dual-marked ballots.  Official election ballots currently state, among other instructions, “If you spoil this ballot, return it to the Board agent for a new one.”  The Board noted that the term “spoil,” like dual-marked ballots themselves, was not clear and could lead to confusion.

This instruction will now be replaced with a much more detailed instruction regarding the voiding of ballots:

“If you make markings inside, or anywhere around, more than one square, return your ballot to the Board Agent and ask for a new ballot.  If you submit a ballot with markings inside, or anywhere around, more than one square, your ballot will not be counted.”

Employers should take care to speak with their employees about this instruction to make sure they do not simply ignore this important language.

While the bright-line rule itself is retroactive, the Board made it clear that the change in ballot forms is only applicable “prospectively,” and that the change will be implemented as soon as possible.  Notably, it is not grounds for filing an objection if an election is held with ballots containing the old language.  Accordingly, it is even more important for employers to communicate with employees this new bright-line rule, as it may not be reflected on their ballots as of yet.

Impact.

Importantly, the new bright-line rule concerning dual-marked ballots applies retroactively, meaning that not only will it impact future elections but also elections and challenges to elections that are currently ongoing.

This new rule comes at a critical time as the Board’s Regional Offices resume conducting elections, albeit mainly by mail election ballots, previously put on hold due to the COVID-19 pandemic.  As stated by the Board, election ballots may not yet reflect this newly adopted language so employers should take care to communicate the bright-line rule to employees before they receive their ballots.  It is important that employers communicate to their employees what to do if they accidently check the wrong box, get a smudge on their ballot, or simply spill a drop of their morning coffee on their ballot: get a new ballot from the region conducting the election.

It may be tempting for employers to believe this bright-line rule will not have a substantial impact as only a small amount of ballots will be impacted by this new precedent.  However, the Employer and the Union in Providence Health Services would strongly disagree.  Employers seeking to more fully understand this bright-line rule and the impact it can have on elections, particularly during this unprecedented time in our Nation, should reach out to counsel for further guidance.

On the heels of guidance regarding when the duty to bargain may be suspended or modified during the COVID-19 pandemic, the National Labor Relations Board (“NLRB” or “Board”) finalized rulemaking today that changes three aspects of the Board’s representation election procedures (“Final Rule”).

The Final Rule overhauls the handling of unfair labor practice charges commonly referred to as “blocking charges” when a petition for an election is pending, revamps the Board’s voluntary recognition bar doctrine, and changes the evidentiary requirements for barring elections in the construction industry when an employer has voluntarily recognized or entered into a collective bargaining agreement (“CBA”) with a union.  Originally proposed on August 12, 2019, the Final Rule is scheduled to be published on April 1, 2020, eight days after the Board announced it would be delaying implementation of broader changes to other representation case procedures.

An End to Voting Delay via Blocking Charges

The first, and potentially most impactful, amendment in the Final Rule modifies the Board’s current practices that permit a party to a representation proceeding to block an election, including a decertification, based on pending unfair labor practice (“ULP”) charges.  Such ULP charges, known as blocking charges, are typically filed before an election by a union that is seeking to represent a new bargaining unit of employees, or by an incumbent union facing a decertification vote.  Under the Board’s current procedures, the party filing blocking charges may ask that the election be deferred until after the Board resolves the charges.  Observers of the election process have often viewed blocking charges as a delay tactic by unions seeking to shore up waning support as election day approached, or as a means of avoiding or delaying employee attempts to remove a union through decertification, sometimes for years.

The Final Rule changes the Board’s procedure to allow the election to proceed despite pending ULP charges.  This change effectively ends the ability to block employees from voting in an election through the filing of ULP charges.  In the rule the Board initially proposed, ballots would have been impounded in all cases with pending ULP charges.  Under the Final Rule, election ballots will be either counted or impounded until after the charges are resolved, depending on the nature of the charges.

Ballots will be impounded only where the party filing ULP charges requests to block the election process and the charges filed:

  • Allege violations of Section 8(a)(1) and 8(a)(2) or Section 8(b)(1)(A) of the National Labor Relations Act (“Act”) and challenge the circumstances surrounding the petition or showing of interest; or
  • Allege violation of Section 8(a)(2) through employer domination of a union and that the employer seeks to disestablish the bargaining relationship.

For all other ULP charges, the ballots cast in an election will be opened and counted at the conclusion of the election.

In cases that trigger the impounding of ballots, the Regional Director will impound ballots for up to 60 days from the conclusion of the election if the ULP charge has not been withdrawn or dismissed prior to the conclusion of the election.  If a complaint issues within the 60-day period, the ballots will remain impounded until the charge is resolved.  If the ULP charge is withdrawn or dismissed within the 60-day period, or the 60-day period expires without issuance of a complaint, the ballots will be opened and counted.  Significantly, the serial filing of additional ULP charges will not serve to extend the 60-day period.

Under the Final Rule, regardless of the type of ULP charges involved, the Board will not issue a certification of the results until the charges are resolved.  The overall impact of the Board’s modification of its practices is that a blocking-charge request may only delay the vote count or certification of results, but will not delay the Board conducting a representation election.  The Final Rule is scheduled to be published on April 1, 2020, and will become effective 60 days after publication.

Voluntary Recognition Bar

The second amendment in the Board’s Final Rule reworks how the Board handles representation petitions after an employer has voluntarily recognized a union.  Under current Board practices, when an employer voluntarily recognizes a union under Section 9(a) of the Act, the union is insulated from any challenge to its majority status for “a reasonable period of time” to allow for collective bargaining.  The Board has defined a reasonable period of time as “no less than 6 months after the parties’ first bargaining session and no more than 1 year.” Lamons Gasket Co., 357 NLRB 739, 748 (2011).  When parties reach agreement on a CBA during this insulated period, the Board generally bars elections for up to 3 years of the new contract’s term under the contract bar doctrine, which can effectively serve to bar subsequent petitions for a total of up to 4 years.

Under the Final Rule, for voluntary recognition of a union to serve as a bar to a subsequent representation petition, unit employees must receive notice that voluntary recognition has been granted and be provided with a 45-day open period to file a decertification or for a rival union to file a petition to represent the unit.  The notice must be posted in conspicuous places where notices to employees are customarily posted, and must be distributed to employees electronically if the employer customarily communicates with employees through electronic means.

Correspondingly, agreement to a first contract with a voluntarily recognized union will not serve to bar petitions for up to 3 additional years if the notice and open-period requirements of the Final Rule have not been met.  The Final Rule applies prospectively to the voluntary recognition of a union on or after the effective date of the Final Rule.

Recognition of Unions in the Construction Industry

The last amendment in the Board’s final rule pertains to recognition of unions in the construction industry.  Under Section 8(f) of the Act, employers and unions in the construction industry may enter into pre-hire agreements without any vote by employees.  Such pre-hire agreements, however, do not serve as a bar to subsequent petitions for a Board election.

Nonetheless, under the Board’s current standards, employers and unions that have entered into such agreements may convert the 8(f) pre-hire relationship into a traditional collective bargaining relationship under Section 9(a) of the Act, and may do so absent a Board-conducted election or a demonstration of majority support.  Under a 2001 decision, Staunton Fuel & Material, 335 NLRB 717, the Board held that construction unions could establish Section 9(a) collective bargaining relationships by entering into a contract with language stating that: (1) the union requested recognition as a majority or Section 9(a) bargaining representative of employees; (2) the employer recognized the union as the majority or Section 9(a) representative; and (3) the recognition was based on the union showing, or offering to show, evidence of majority support.

The Final Rule provides that contract language alone cannot create a Section 9(a) bargaining relationship in the construction industry.  Instead, the Board will require positive evidence that proves a union demanded recognition from an employer and the employer granted recognition based on a demonstration of majority support.  The Final Rule’s amendment concerning the recognition of construction unions applies to voluntary recognition extended on or after the effective date of the Final Rule, and to any CBA entered into on or after the date of voluntary recognition extended on or after the effective date of the Final Rule.

The Board’s Continuation of its Rulemaking Agenda

Despite the indefinite postponement of all representation elections and the limitations imposed on the operations of NLRB Regional Offices due to the impact of COVID-19, the Board issued the Final Rule within the general timeframe expected for the rule, given the extension of deadlines for comments to the initial proposal for the rule.  Notably, in the Final Rule, the Board specifically references its broader changes to other representation case procedures that were scheduled to become final on April 16, 2020, but which are currently postponed until at least May 31, 2020 due to legal challenges filed by organized labor earlier this month.  In this Final Rule, the Board notes that those broader changes to representation election rules are still “scheduled to take effect in Spring 2020.”  For now at least, the Board appears positioned to continue its planned rulemaking changes despite the uncertain times.

On February 23, 2017 the National Labor Relations Board (“Board” or “NLRB”) made public a proposed Final Rule to revise its Rules and Regulations “ (the “Rules”)  to reflect modern technology, such as E-Filing, and eliminate references to telegraphs, carbon copies, and the requirements for hard copy submissions and multiple copies, and to eliminate legalistic terms” from the Rules.

Because the Board contends these amendments to its Rules as “procedural rather than substantive,” it has taken the position that it is not obligated to allow for comment before the amended rules are formally adopted and take effect, and that the amendments to the Rules and Regulations will take effect ten days after their publication in the Federal Register. The Board then published the amendments on Friday February 24th, which means they are to take effect on March 7, 2017, absent any judicial intervention.

An initial reading of the amended Rules and the Board’s summary suggests that most of the changes really are procedural in nature and unlikely to have a material impact on the outcome of representation or unfair labor practice proceedings before the Board. However, given the fact that the Board has demonstrated an increasing tendency in recent actions, particularly since it amended its Rules in representation cases in 2014 to hold parties to increasingly strict compliance standards that can impact substantive rights, it is important for employers who participate in proceedings before the Board and those who represent and counsel them to become familiar with the amended Rules and the changes they include. For that reason we have prepared this summary of what we think are the potentially most significant changes in the Board’s Rules.

Why the Board says it is amending its Rules

The Board has summarized the announcement of its proposed amendments to the Rules and Regulations as being intended to

reorganize the Rules and add headings so that the subject matter is easier to find; incorporate current practices that had not been included in the published Rules, such as the Board’s Alternative Dispute Resolution Program; and update and streamline provisions of the FOIA regulations, . . . clarify the means by which documents are filed and service is made by the parties and the Board, . . .(and) promote the parties’ use of E-Filing, which will facilitate sharing documents with the public.

A Summary of Principal Changes in the These Amendments

The Board has characterized the changes to its Rules in these amendments as falling into five broad categories: I Global Changes, II Definitions, Filing and Service, III “Unfair Labor Practice Cases, IV FOIA, and V Other Sections.

The amended Rules and the Board’s description of the changes run to 167 pages and given the fact that the Board in many circumstances holds the employers, unions and employees who appear before the Board in unfair labor practice and representation cases to strict compliance with its Rules, we have prepared this Act Now Advisory to summarize for readers what, as of now, appear to be the principle changes in the amended Rules.

Notably, although when the Board adopted amendments to the Rules and its procedures in representation cases that took effect in April 2015, the Board published extensive comparative materials for practitioners and members of the public describing how those amendments changed requirements and practice, as of yet no similar analysis has been released by the Board concerning the new amendments to the Rules.

Our review and comments in this Advisory follow the Board’s five categories: Global Changes, Definitions, Filing, and Service, Unfair Labor Practice (“ULP”) Cases, Freedom of Information Act (“FOIA”) matters, and Other Sections of the Board’s Rules.

Notably, and perhaps not surprising given that the existing rules concerning Representation Proceedings were adopted by the Board in 2014 and implemented in 2015, after extensive review and comment, the amended Rules do not specifically address any of the sections of the Rules concerning Representation Cases.

I Global Changes

These changes to the Board’s Rules apply to all types of cases and proceedings. Key changes are as follows:

  • All requirements for filing multiple copies of documents have been removed from the Rules. Under the existing Rules, there were numerous circumstances where parties were required to submit multiple copies of documents. This often caused confusion when a party used the Board’s E-Filing system to electronically file documents.
  • The amended Rules use plain English. The amended Rules have been revised “to use plain English and eliminate terms such as “therefrom,” “thereupon,” “therein,” “herein” and “said.”
  • Time periods have been changed to multiples of 7. While the Summary suggests that all time period calculations have been changed to multiples of 7, this is not actually so. For example, in representation cases, there are still numerous requirements that filings be made and actions taken in shorter time frames. Parties will need to consult the actual section of the Rules to determine what the applicable time requirements are
  • Gender specific language is eliminated in many cases.
  • Ambiguous words are replaced. The word “shall” has been replaced with either the word “must,” ”will” or “may” to make clear whether a particular action is required or discretionary.

II Changes Concerning Definitions, Filing and Service

The Board’s filing and service requirements, contained in Sections 102.111 through 102.114 of the Rules have been reorganized and modified. Rather than placing filing and service requirements in the portions of the Rules that addressed particular types of cases and proceedings, all filing and service requirements are consolidated in Section 102 of the amended Rules.

  • Separate sections for definitions and service and filing.
  • New provisions addressing notice to the Board of “supplemental authority and signatures on E-filed documents. See Sections 102.6 and 102.7.
  • Time requirements for filings in Board cases have been reorganized. See Section 102.2.
  • The Board has changed the Rules’ “time computation” provisions for filing “responsive documents.” Under the amended Rules, “the designated period” for filing a responsive document will now begin to run “on the date the preceding document was received by the Agency, even if the preceding document was filed prior” to the date it was due to be filed.
  • Calculation of when an E-Filed document must be filed. Under the amended Rules, E-Filed documents must now be filed and received on the due date “by 11:59 p.m. of the receiving office’s time zone.”
  • The amended Rules change the requirements concerning requests for extensions of time to file documents with the Board.
    • Requests for extension of time must generally be filed no later than the date on which the document is dues, but may be filed within 3 days of the due date in circumstances “not reasonably foreseeable in advance.”
    • All requests for extensions of time must be in writing. While such requests have typically been made in writing, the Rules did not actually require this until now.
    • The amended Rules add language encouraging parties to seek agreement from other parties for extensions of time and requiring that any request for an extension of time include the positions of all other parties. Hereto, while most practitioners have typically taken these steps and the Board has encouraged them, they have not been required by the Rules before.
    • The amended Rules require any party opposing a request for an extension of time to file their opposition in writing “as soon as possible following receipt of the request.”
  • Newly added Section 102.2 (d) puts in writing for the first time the Board’s practices and requirements in connection with documents that are not filed or served by the time required and established procedures for requesting permission to file a document after it is due.
    • The amended Rules allow for the late filing of certain documents “within a reasonable time after the time” required under the Rules “upon good cause shown based on excusable neglect and when no prejudice would result.” Significantly the term “excusable neglect” is not defined in the Rules or the Act.
    • The amended Rules indicate that the types of documents that may be filed late in unfair labor practice proceedings are motions, exceptions, answers to complaints and backpay specifications and briefs.
    • The amended Rules indicate that the types of documents that may be filed late in representation cases are exceptions, requests for review, motions, briefs, and responses to each of these types of documents,
    • Under the amended Rules, any request to file one of the specified documents must be made by written motion, and the motion must include the document the party is seeking permission to file late and the grounds for the request, which need to include the “good cause” and the reasons the party asserts that no prejudice would result. These facts must be contained in an affidavit and “sworn to by individuals with personal knowledge of the facts.”
    • A party opposing a request for permission to late file can file an opposition to the request, but not until after a ruling on the request. In other words, a party cannot oppose a request for permission to file late until after the request has been granted.
  • The amended Rules change the methods of service that are permitted.
    • Parties can no longer serve papers by telegraph.
    • The amended Rules give the Board the right to serve any documents by facsimile or email.
    • The amended Rules authorize the service of subpoenas by private delivery service.
    • Section 102.5 (c) provides for much greater use of the Board’s E-Filing system for the electronic filing of documents. Under the new rule, the Board adopts the requirement that all documents other than unfair labor practice charges, representation petitions and showings of interest in representation cases must be filed through the Board’s E-Filing system unless a party submits with its hard copy document a written statement explaining why the party does not have access to the means to use E-Filing or why E-Filing would impose an undue burden on the party.
    • Section 102.5 (e) restricts the ability of parties to file documents with the Board by facsimile. Under the amended Rules, the only documents that may be filed by facsimile are unfair labor practice charges, representation case petitions, objections to conduct affection the outcome of a representation election, and request for extension of time for filing of documents.
  • New provisions for Notice to the Administrative Law Judge (“ALJ”) or Board of Supporting Authority.
    • Section 102.6 adds a formal process for the first time enabling a party to make a supplemental submission, after it has filed a brief to the Board or an ALJ, when it becomes aware of “pertinent and significant legal authority.”
    • A party may bring such authority to the attention of the ALJ or the Board by “promptly filing a letter with the judge or the Board,” and serving copies of the letter on all other parties.
    • The body of such a letter “may not exceed 350 words,” and any reply is subject to the same word limit.
    • In an unfair labor practice case, any response must be filed within 14 days, while in a representation proceeding it must be filed within 7 days after service.
  • The amended Rules allow for electronic signatures on documents filed with the Board.
    • While parties have routinely submitted documents with electronic signatures to the Board in the past, the amended Rules formally recognize the use of electronic signatures and make provision for them.
    • Electronic signatures will now have “the same legal effect, validity, and enforceability as if signed manually.” Section 102.7.
    • The amended Rules define electronic signature as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the document.”
    • The Board’s adoption of this rule confirming its acceptance of electronic signatures should come as no surprise, given the announcement by the Board’s General Counsel in September 2015 that the agency would accept employees’ electronic signatures as part of a union’s showing of interest in support of a representation petitions.

III Unfair Labor Practice Cases

  • The changes to the Rules concerning Unfair Labor Practice (“ULP”) cases are primarily procedural and consistent with the administrative-type changes described above.
  • Under revised Section 102.11, a party filing a charge by facsimile will no longer be required to submit the signed original as well. The Board has explained that this change is intended to prevent the docketing a second time of a charge that was filed by E-Filing or facsimile when the hard copy is received by mail.
  • The Board will no longer permit a party filing a charge to submit attachments to the charge form. Section 102.12 (b).
  • Revised Section 102.14 (a) eliminates the requirement that before a party filing a charge serves a copy on the respondent that the respondent’s permission be obtained in advance if the charge is going to served by facsimile. Advance permission will still be required before service of a charge by email.
  • Regional Offices will now be able to serve charges not only by regular mail or facsimile but also in person, by private delivery service, by email or in any other method permitted by Rules 4 and 5 of the Federal Rules of Civil Procedure, or in any other agreed upon manner.
  • The amended rules address the question of when service of a charge is considered to have been made when the charge is served by email.
    • When service is by email, “the date the email is sent” will be considered the date of service.
    • When service is by mail or private delivery service, the date the charge is deposited with the post office or the other carrier will be considered the date of service.
    • In the case of service by facsimile, the date the fax is received will be considered the date of receipt.
    • No explanation is offered for the decision to treat facsimile and email so differently.
  • The amended Rules address the question of when a Regional Director has the authority to change the date, time and place of a ULP hearing, either on his or her own authority or with the agreement of the parties. Under Section 102.16, these may be changed when
    • All parties agree to the change of the hearing date;
    • New ULP charges have been filed which, “if meritorious, might be appropriate for consolidation with” the earlier case or cases;
    • Where there are ongoing settlement discussions which the Regional Director concludes “could lead to settlement of all or a portion of the complaint;’
    • Where there are issues related to the complaint “pending before the General Counsel’s Division of Advice or Office of Appeals;” or
    • Where there are more than 21 days remaining before the scheduled start of the hearing.
    • Note that this gives the Regional Director great discretion as the provisions concerning postponement because of related issues being under consideration by the Division of Advice or the Office of Appeals is not limited to pending cases involving any of the same parties.
  • Section 102.24 (c) codifies what has been the Board’s practice, under D. L. Baker, Inc., 330 NLRB 521, fn. 4(2000) concerning replies to oppositions to motions filed with the Board.
    • A party that has filed a motion with the Board will be permitted to submit a reply to any opposition to that motion within 7 days of its receipt of the opposition, but “in the interest of administrative finality,” no further responses are permitted.
  • The amended Rule 102.31 (a), which concerns subpoenas in ULP cases, now specifically recognizes that Board subpoenas can require the production of “electronic data.”
  • Amended Rule 102.31 (b) codifies that a party adversely affected by a ruling on a petition to revoke a subpoena has the right to make the ruling and related pleadings a part of the record in the ULP hearing.
  • Section 102.45 will for the first time make the Board’s existing Alternative Dispute Resolution (ADR) Program, which is really a mediation program, a part of the Rules.

IV FOIA

The Board’s summary describes the amendments to the Rules concerning the Board’s processing of requests made under the Freedom of Information Act (“FOIA”) as being intended to “update and streamline procedural provisions of the (NLRB’s) FOIA regulations,” and to reflect organizational changes within the Board’s Headquarters and “centralization” of the Board’s FOIA processing formerly located in the regional offices. The Rules changes are also described as intended to make the Board’s FOIA regulations “more readable and requester-friendly.”

  • Section 102.117 (c)(1)(ii) codifies the existing requirement that FOIA requests be made to the Board’s FOIA Officer in Washington, rather than to the Regional Office where the case that is the subject of the request was processed.
  • The amended Rules express the Board’s “preference” for requests to be made electronically.
  • The amended Section 102.117 (a)(4) no longer includes a lost of the records the Board will produce under FOIA. Instead, the Board refers parties to the text of the amended FOIA Improvement Act of 2016.
  • Under amended Section 102.117(c)(2)(v), parties will have 90, rather than 28 days to file administrative appeals of adverse determinations on FOIA requests.

V Other Sections

According to the Board’s summary, this group of amendments to the Rules are quite limited.

  • The amended Section 102.96 may be of interest to employers as it relates to the circumstances in which the Board, following investigation of a ULP charge alleging unlawful secondary boycott activity by a union in violation of Section 8 (b)(4) of the Act, determines that Section 10(l) injunctive relief is appropriate and should be sought by the Board in district court.
  • Amended Section 102.96 mandates that the Regional Director is to “promptly” issue a ULP complaint, “normally within 5 days of the dates when injunctive relief is first sought” in court.

The Board’s Required Findings Concerning the Amended Rules

  • While President Trump has spoken repeatedly of his intent to slash the number of rules and regulations under federal law and has called for any new rule or regulation to be offset by the elimination of two existing rules or regulations, the Board has not addressed those mandates in either its summary or the amended Rules themselves. The Board has however made required findings concerning rule making under existing federal laws.
  • As required under the Regulatory Flexibility Act, the Board has determined that the amendments to the Rules “will not have a significant impact on a substantial number of small entities.
  • In accordance with the requirements of the Unfunded Mandates Reform Act of 1995, the Board states that the amendments “will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year.”
  • The Board has concluded that the adoption of the amended Rules “is not a major rule as defined under the Small Business Regulatory Enforcement Fairness Act of 1996.”

What Employers Should Do Now

It is perhaps ironic that the Board, composed of two Democrats and one Republican, all holdovers from the Obama Administration, has chosen this moment, just a month into the Trump Administration and as rumors have begun circulating as to who President Trump will nominate to fill the 2 vacant seats on the Board reserved for members of the President’s own parties, i.e. Republicans.

No doubt, once those seats are filled a new Republican majority on the Board will begin to address far more substantive matters under the Act, including the many changes in the interpretation of the Act of the past 8 years.

Regardless of the substantive decision making of the Board, it remains critical that employers and all others with business before the Board understand the procedural and statutory framework under which the Board conducts its business. Those who do not study these amendments and follow their dictates risk being undone by not knowing the rules that govern all cases.

As we previously reported, the ambush election rules implemented by the National Labor Relations Board (“Board”) last year tilted the scales of union elections in labor’s favor by expediting the election process and eliminating many of the steps employers have relied upon to protect their rights and those of employees who may not want a union. We warned that in addition to rapidly expediting election timeframe, the regulations were full of technical and burdensome procedural mandates on employers.  The Board further emphasized the pro-union impact of these requirements in a Decision last week when it overturned the results of an election that a union overwhelming lost based on a hyper-technicality.  Even though there was no prejudice to the union, the Board gave the union another bite at the apple despite the employees’ resounding rejection of union representation; effectively denying the employees their voice and imposing even more burdens on the employer.

New Regulations require service of Excelsior List on union

Section 102.62(d) of the Board’s New Rules and Regulations provides that an employer “shall provide to the regional director and the parties…a list of the full names [and other information] of all eligible voters… within 2 business days after the approval” of the Stipulated Election Agreement. This list of eligible voters is commonly referred to as an “Excelsior list.”   Section 102.62(d) further provides that the Employer’s failure to follow these procedural mandates “shall be grounds for setting aside the election whenever proper and timely objections are filed.”

The Petition and Election at issue

On Thursday, March 3, 2016, URS Federal Services, Inc. (“Employer”) and the International Association of Machinists and Aerospace Works, District Lodge 725 (“Union”) entered into a Stipulated Election Agreement. The Employer filed the list of eligible voters, commonly referred to as an “Excelsior list,” with the Region on Saturday, March 5, but failed to serve the list on the Union.  While the Board’s Decision noted the Employer never offered any explanation for its oversight, the fact is that under the prior regulations an employer need only file the list with the Region; the requirement to serve the union is new.  While the Employer did not directly send it, the Region forwarded the list to the Union on Monday, March 7, thus the Union timely received the list within two business days of the approval of the Stipulated Election Agreement.

The Union lost the election 91 to 54. After its crushing defeat, the Union filed objections, seeking to overturn the election because of the Employer’s deficient service, even though it had timely received the list and never complained of service issue before.

Regional Director finds no harm, no foul

The Acting Regional Director for Region 20 acknowledged that the Employer failed to serve the Union, but declined to set the election aside because the Union had suffered no prejudice since it received the list within two business days of the approval of the Stipulated Election Agreement as required by the Election Rules. The Regional Director explained that “[t]o hold otherwise would exalt form over substance.”  Relying on well-established Board precedent, the Regional Director also concluded that the employer’s technical violation did not frustrate the purpose of the Excelsior rule, which was to ensure that employees are provided a “full opportunity to be informed of the arguments concerning representation.” Bon Appetit Management Co., 334 NLRB 1042, 1043 (2001).

Board puts form over substance to favor Union

The Board rejected the Regional Director’s decision, reasoning that “[t]o allow parties to ignore the service requirements set forth in Section 102.62(d) without any explanation or excuse would undermine the purpose of those provisions.” The Board never articulated what purpose it was referring to, other than to insinuate that strict enforcement was necessary to ensure “all parties take their obligations seriously under the amended Rules.”  (italics in original).  Notably, the primary purpose of the service requirements – to ensure employees are fully apprised of the arguments concerning representation – had not been undermined since the Union timely received the list from the Region.

Dissent detail Board’s pro-union hypocrisy

As dissenting Board Member Philip A. Miscimarra (“Miscimarra”) explained, the Board’s decision is troubling for several reasons. Not only does the holding elevate form over substance, but it contravenes longstanding precedent that the Board should not overturn election results lightly “unless presented with clear evidence that the results may not reflect the will of the voters.”  In furtherance of this principle, the Board has previously declined to overturn elections despite allegations of death threats or widespread voter fraud.  In stark contrast, the Board here accepted the Union’s contention that a “purely technical violation of a service requirement, timely cured by the Region, warrants overturning election results that overwhelmingly disfavored” the Union.

Equally, and perhaps more, concerning is that the Board has effectively created a double standard for unions and employers. In Brunswick Bowling Products, LLC, 364 NLRB No. 96 (2016), a decision issued a mere three months earlier, the Board unanimously upheld the Regional Director’s decision to excuse the union’s untimely service of its Statement of Position.  As Miscimarra aptly pointed out, although the Board has long tolerated minor deviations from the Excelsior list requirements, no such “history of leniency” exists with respect to the service requirements for Statements of Position.   Yet, when a union violated the historically inflexible service requirements for Statements of Position, the Board excused the union’s noncompliance, but refused to do the same for an employer who failed to comply with rules that have traditionally permitted slight deviations, “even though the service error could not have affected the election results because the Union received the voter list on the same day it would have received the list had no service error been committed.”

Employers are advised to continue to adhere to Obama Board’s Regulations and Decisions

During the last eight years, the Obama Board has overturned longstanding Board precedent and expanded the rights of unions far and wide. Many employers may anticipate some relief from the onerous burdens imposed by the Board during the last eight years as a new administration comes to DC.  However, this case is a sober reminder that the Board intends to enforce the rules it has promulgated during the last eight years, and employers cannot afford to become lax in their obligations under these rules and must remember the Decisions rendered remain the standards to which they will be held.