Health Care Industry Employers Should Take Careful Note of Significant Changes to Union Election Rules
The National Labor Relations Board (NLRB) recently published its Final Rule on Representation-Case Procedures (the Rule). The Rule updates procedures regarding union elections and related representation proceedings, and its reach will affect many healthcare industry employers. In their recently published Client Alert, reproduced below, Arent Fox partner Michael L. Stevens and associate Karen S. Vladeck provide insightful analysis of the Rule, its potential impact, and some significant objections lodged by dissenting NLRB members and business groups.
Arent Fox will continue to monitor the developments in this area of law. If you have any questions, please contact Michael L. Stevens or Karen S. Vladeck, or the Arent Fox professional that usually handles your matters.
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Ambush! NLRB Issues Final Rule on Quickie Elections
by Michael L. Stevens and Karen S. Vladeck
On December 15, 2014, a divided National Labor Relations Board (NLRB or Board) published its controversial Final Rule on Representation-Case Procedures (the Rule). The Rule will take effect on April 14, 2015 and is designed to update current NLRB procedures regarding union elections and related representation proceedings. The Rule, which has been in the works for years, reduces the amount of time between the filing of an election petition and the date of the actual election, while imposing additional requirements upon employers during that period and removing several employer-friendly procedural safeguards. The Rule’s major changes are discussed below in detail.
The Majority’s Rationale
Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer approved the Rule. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented. Chairman Pearce said, “I am heartened that the Board has chosen to enact amendments that will modernize the representation case process and fulfill the promise of the National Labor Relations Act (NLRA or Act). Simplifying and streamlining the process will result in improvements for all parties. With these changes, the Board strives to ensure that its representation process remains a model of fairness and efficiency for all.” According to a press release, the Board believes the Rule “will enable the agency to more effectively administer the National Labor Relations Act by modernizing its rules in light of modern technology, making its procedures more transparent and uniform across regions, and eliminating unnecessary litigation and delay. With these amendments, the Board will be better able to fulfill its duty to protect employees’ rights by fairly, efficiently and expeditiously resolving questions of representation.”
Reaction from Business
It is expected that several business groups, including the Coalition for a Democratic Workforce, the National Retail Federation, the National Association of Manufacturers, the US Chamber of Commerce, and the Society for Human Resources Management (SHRM) will challenge the Rule in court. Nancy Hammer, SHRM’s senior government affair policy counsel, issued a statement saying “SHRM feels that the rule improperly focuses on speeding up the time to election at the expense of other important aspects of the National Labor Relations Act, including an employee’s right to access the information needed to make a full and informed choice and an employer’s right to express their views.”
SHRM is also particularly concerned about the requirement that employers provide employees’ personal phone numbers and personal e-mail addresses to unions. “SHRM is very concerned about the potential for misuse of private employee data, the burden on employers to collect and submit the information within the time constraints under the rule, as well as concerns about employer sanctions for unintentional submissions of inaccurate information. SHRM members have expressed great concern about this requirement,” Hammer stated.
Comparison of Current and New Procedures
The NLRB published the following Comparison Table showing the major differences between the current and the new election procedures:
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Current Procedures |
New Procedures |
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Parties cannot electronically file election petitions. Parties and NLRB regional offices do not electronically transmit certain representation case documents. |
Election petitions, election notices and voter lists can be transmitted electronically. NLRB regional offices can deliver notices and documents electronically, rather than by mail. |
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The parties and prospective voters receive limited information. |
Parties will receive a more detailed description of the Agency’s representation case procedures, as well as a Statement of Position form, when served with the petition. The Statement of Position will help parties identify the issues they may want to raise at the pre-election hearing. A Notice of Petition for Election, which will be served with the Notice of Hearing, will provide employees and the employer with information about the petition and their rights and obligations. The Notice of Election will provide prospective voters with more detailed information about the voting process. |
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The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region. |
The Regional Director will generally set a pre-election hearing to begin 8 days after a hearing notice is served and a post-election hearing 14 days after the filing of objections. |
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There is no mechanism for requiring parties to identify issues in dispute. |
Non petitioning parties are required to identify any issues they have with the petition, in their Statements of Positions, generally one business day before the pre-election hearing opens. The petitioner will be required to respond to any issue raised by the non petitioning parties in their Statements of Positions at the beginning of the hearing. Litigation inconsistent with these positions will generally not be allowed. |
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The employer is not required to share a list of prospective voters with the NLRB’s regional office or the other parties until after the regional director directs an election or approves an election agreement. |
As part of its Statement of Position, the employer must provide a list of prospective voters with their job classifications, shifts and work locations, to the NLRB’s regional office and the other parties, generally one business day before the pre-election hearing opens. This will help the parties narrow the issues in dispute at the hearing or enter into an election agreement. |
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Parties may insist on litigating voter eligibility and inclusion issues that do not have to be resolved in order to determine whether an election should be held. |
The purpose of the pre-election hearing is clearly defined and parties will generally litigate only those issues that are necessary to determine whether it is appropriate to conduct an election. Litigation of a small number of eligibility and inclusion issues that do not have to be decided before the election may be deferred to the post-election stage. Those issues will often be mooted by the election results. |
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Parties may file a brief within seven days of the closing of the pre-election hearing, with permissive extensions of 14 days or more. |
Parties will be provided with an opportunity to argue orally before the close of the hearing and written briefs will be allowed only if the regional director determines they are necessary. |
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Parties waive their right to challenge the regional director’s pre-election decision if they do not file a request for review before the election. This requires parties to appeal issues that may be rendered moot by the election results. |
Parties may wait to see whether the election results have made the need to file a request for review of the regional director’s pre-election decision unnecessary and they do not waive their right to seek review of that decision if they decide to file their request after the election. |
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Elections are delayed 25-30 days to allow the Board to consider any request for review of the regional director’s decision that may be filed. This is so even though such requests are rarely filed, even more rarely granted and almost never result in a stay of the election. |
There will be no automatic stay of an election. |
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The Board is required to review every aspect of most post-election disputes, regardless of whether any party has objected to it. |
The Board is not required to review aspects of post-election regional decisions as to which no party has raised an issue, and may deny review consistent with the discretion it has long exercised in reviewing pre-election rulings. |
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The voter list provided to non-employer parties to enable them to communicate with voters about the election includes only names and home addresses. The employer must submit the list within seven days of the approval of an election agreement or the regional director’s decision directing an election. |
The voter list will also include personal phone numbers and email addresses (if available to the employer). The employer must submit the list within two business days of the regional director’s approval of an election agreement or decision directing an election. |
The Dissent
In a long dissent, Board members Miscimarra and Johnson took the majority to task: “The Final Rule has become the Mount Everest of regulations: Massive in scale and unforgiving in its effect. Very few people will have the endurance to read the Final Rule in its entirety.” They offered the following “selective” observations of the Rule:
- Rule’s Primary Purpose and Effect: Union Elections As Quickly As Possible. The Final Rule adopts almost all of what was set forth in the February 2014 Proposed Rule, which in turn was nearly identical to what the Board originally proposed in 2011. There are minor changes, but the Rule’s primary purpose and effect remain the same: Initial union representation elections must occur as soon as possible. The Rule’s defects also remain the same, uncured by the majority’s lengthy discussion, which reflects an awareness of criticisms that are far too often summarily rejected.
- Election Now, Hearing Later. The Rule would impermissibly conduct expedited representation elections before any hearing addresses fundamental questions like who is eligible to vote, thereby resulting in an “election now, hearing later.” This “election now, hearing later” approach was twice rejected by Congress, in amending the NLRA in 1947 and 1959, and is contrary to the statute’s requirement — twice affirmed by Congress — mandating an “appropriate hearing” prior to any representation election.
- Vote Now, Understand Later. The Rule improperly shortens the time needed for employees to understand relevant issues, compelling them to “vote now, understand later.” Regarding these issues, the Rule takes self-contradictory positions that are contrary to common sense, contrary to the Act and its legislative history, and contrary to other legal requirements directed to the preservation of employee free choice, all of which focus on guaranteeing enough time for making important decisions. The Rule operates in reverse, making the available time as short as possible.
- Infringing on Protected Speech. By requiring elections to occur as quickly as possible, the Rule curtails the right of employers, unions, and employees to engage in protected speech. We believe this infringement on protected speech is impermissible, but even if it is within the Board’s authority, it is ill-advised and poorly serves the Act’s purposes and policies.
- Lack of Need for the Rule. The Rule leaves unanswered the most fundamental question regarding any agency rulemaking, which is whether and why rulemaking is necessary. Objective evidence demonstrates that the overwhelming majority of existing elections occur without any unreasonable delay (substantially more than 90 percent of elections occur within 56 days after petition-filing). Although a small number of elections involve more time, this is not a rational basis for rewriting the procedures governing all elections. The Final Rule does not even identify, much less eliminate, the reasons responsible for those few cases that have excessive delays.
- Due Process. The Rule greatly accelerates all deadlines associated with representation elections; it selectively imposes on employers the duty to submit a comprehensive written position statement seven days after notice of a petition-filing by a union; it permits post-submission “amendments” only in narrow circumstances; the new “pleading” requirements, while facially neutral, will in practice weigh far more heavily on employers than on unions attempting to organize nonunion employees; the Rule directs the exclusion of evidence regarding important election issues; and it directs hearing officers in most instances not to permit post-hearing briefs (which, currently, adds a mere seven days to the pre-election timetable); and it codifies and places increased reliance on private consultation and decisionmaking between hearing officers and regional directors, conducted off the record (and thus precluding review by the Board, especially regarding matters that are deferred or excluded from the hearing). In our view, these changes are fundamentally unfair and will predictably deny parties due process by unreasonably altering long established Board norms for adequate notice and opportunity to introduce relevant evidence and address election-related issues.
- Improperly Diminishing the Board’s Role. The majority not only rewrites nearly all procedures governing elections, it eliminates any mandatory role for Board members in resolving post-election questions that arise from the Rule (relegating this to regional directors and to the courts, with only discretionary and post-election review by the Board). The Final Rule articulates no necessity for a “hands-off” policy of Board non-involvement in post-election cases, which we believe is irreconcilable with the statute’s requirement that the Board “in each case * * * assure to employees the fullest freedom in exercising the rights guaranteed by this Act.”
- Disclosures and Employee Privacy. The Rule imposes new mandatory disclosure requirements obligating employers to disclose personal contact information of unit employees, including all personal email addresses and cell phone numbers in the employer’s possession. However, the Rule’s justification for these expanded disclosure requirements (the importance of personal email and cell phones to protected concerted activity in the workplace, given the “prevalence” at “work” of “cell phones,” which have become “the preferred mode of communication for many young people”) is irreconcilable with Purple Communications, 361 NLRB No. 126 (2014), where the Board majority insists that “social media, texting, and personal email accounts” are not even “germane” because they “simply do not serve to facilitate communication among members of a particular workforce” (emphasis added). Moreover, the Final Rule adopts the expanded disclosure requirements without any employee “opt-out” right regarding such information. The Rule even rejects privacy-enhancement measures as simple as requiring an “unsubscribe” link in election-related texts and emails, notwithstanding the current widespread use of such measures in other third-party communications.
- The Consensus Path Not Taken. Most disappointing is the Rule’s failure to incorporate reforms that could have had unanimous Board member support, and substantial support among practitioners, scholars, and advocates for employees, unions, and employers. We favor (i) making representation procedures more effective; (ii) having most representation elections occur at least within 30 to 35 days after petition-filing; (iii) changing the Board’s internal procedures so virtually all elections — disputed or not — would occur within 60 days after petition-filing; and (iv) adopting stricter, more expansive remedies for unlawful election conduct.
Conclusion
It will be interesting to see if the Rule survives the judicial, and perhaps even legislative, challenges it may face. If you have any questions about the Rule, please contact the authors of this post or the Arent Fox professional who handles your matters.
