NLRB New Union Election Rules

Union Organizing Under New NLRB Rules and Key Decisions

Bill Cruice, Esq., Executive Director, Pennsylvania Association of Staff Nurses & Allied Professionals (PASNAP)

Jon Nadler, Esq., Eckert Seamans Cherin & Mellott, LLC

Newly Promulgated Rules, 79 Fed. Reg. 74308, Subject to Immediate Legal Challenge

Challenges rejected by:NLRB: Pulau Corporation, 363 NLRB No. 8 (2015)

District Court: Chamber of Commerce of the U.S. v. NLRB, 118 F.Supp.3d 171 (D.D.C. 2015)

5th Circuit: Associated Builders & Contractors of Texas, Inc. - 826 F.3d 215 (5 Cir. 2016)

Updated Organizing Procedures Become Effective April, 2015

Must set forth proposed election details, such as type of election (manual or mail ballot, etc.), specific dates, times, location.

Must serve a copy of the petition, a blank Statement of Position form (NLRB-505), a Description of Procedures (NLRB-4812) on the employer

Key Procedural Changes Impacting Petitioners Under New Rules

A hearing will be scheduled 8 days after petition is filed, unless petition is docketed after noon, where it could be pushed to the ninth day post-petition.

By noon prior to day of hearing, employer must submit to Region its Statement of Position (SOP); the failure to do so works a waiver of the employer’s right to raise issues contained within the SOP, with the exception being 2(11) supervisory status, which can be raised via ballot challenges.

Key Procedural Changes Impacting Employers Under New Rules

• SOP must include:

- jurisdictional and commerce information;

- position on appropriateness of unit sought, and if not, the specific classifications, locations or other employees that must be added or excluded to make it an appropriate unit;

- must identify individuals the employer intends to contest at the pre-election hearing and the basis for each contention


SOP must include: - must take a position on whether there is a bar to election and provide employer’s position on preferred election date, time, logistics as well as any other issue that may be raised at the hearing;

- must contain full list of names, work locations, shifts and job classifications of all individuals in proposed unit, and if the employer believes a different unit is appropriate, must include such details for the employer’s preferred appropriate unit, including those employees it seeks to exclude. Sec. 102.63(b)(1)(iii)


Should employer raise issues in SOP and/or at the hearing, they now must make an offer of proof. RD has the discretion to:(1) direct an election without a hearing, with an order that outstanding issues be dealt with through ballot challenges. (2) order a hearing, request an offer of proof, and then direct election with outstanding issues being dealt with through ballot challenges (3) order a hearing, but require parties to summarize their positions on the record, sans written briefs;(4) “Special permission” required to submit written briefs; sometimes returnable within 2 to 3 days post-hearing.

Key Procedural Changes Under New Rules

Elections Directed More Expeditiously Under

New Rules

3 Key Elements Determine When Election is Set:(1) Time Required for Issuance of DD&E(2) Requirement that Notice of Election be

posted “at least 3 full working days prior to 12:01 a.m. of the day of election”

(3) The right of Union to have a voter list for 10 days prior to the election, but the union can waive some or all of such time

Key Procedural Changes Under New Rules

Practically, New Rules Alter the Balance of Leverage BetweenPetitioner (Union) and the Employer Under previous rules, employers could (and did) threaten to force a delay-inducing hearing, often on questionable grounds, in order to gain preferred inclusions/exclusions to the bargaining unit and their preferred election date, typically about 42 days post-petition.

New Rules Impact the Relative Bargaining Leverage in Setting Election Terms

Median Days between Petition Filing and:

4/14/15 – 4/15/16

Pre-Election Hearing:10 14

Election Agreement:8 11

Election:24 38

- With Election Agreement:

23 38

- With Directed Election:

34 64

Certification: 35 50

Time Between Petition Filing and Election Reduced; Though Success Rate Unchanged

GC Memo (GC-08, 9/1/15) confirms that longstanding Board evidentiary standards apply equally to “electronic signatures”

Somewhat heightened authentication requirements

Utilization by Unions so far not overwhelming

Properly Authenticated Electronic Signatures Valid for Showing of Interest

Prior Rules Easily Facilitated Election Delay With ULP Filing

Under New Rules, parties seeking to “block” election must submit form (NLRB-5546) making detailed offer of proof, with witness’ names, summary of testimony

Regions appear to be requiring immediate production of witnesses

New Organizing Rules and Their Impact on “Blocking Charges”

Read in para materia with new procedural rules, a few key NLRB decisions have capacity to alter organizing landscape

Specialty Healthcare & Rehab Center of Mobile, Inc., 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3rd 552 (6th Cir. 2013)

Key NLRB Decisions and Their Impact on Organizing

Specialty Healthcare standard for an appropriate

unit:

1) Do the employees in the petitioned-for unit have a community of interest that is “readily identifiable”?;

2) If yes, the party seeking a broader unit bears the burden to demonstrate that employees in putative larger unit “share an overwhelming community of interest with those in the petitioned-for unit.” 357 NLRB at 943-944.


NLRB and Courts have approved units of:

Cosmetics/Fragrance Department within much larger Department Store. Macys, Inc., 361 NLRB No. 4 (2014), enforced 824 F .3d 557 (5th Cir. 2016).

Maintenance employees within larger ice cream production facility. Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016)

City and Over the Road Drivers at Fed Ex terminal but not including dock workers. FedEx Freight v. NLRB, 816 F.3d 515 (8th Cir. 2016).


There are Limits to Specialty Healthcare, See, e.g.,

A.S.V., Inc., 360 N.L.R.B. No. 138 (2014) (applying Specialty Healthcare and rejecting the proposed unit as "fractured" and thus inappropriate);

Odwalla, Inc., 357 N.L.R.B. 1608, 1612-13 (2011) (applying Specialty Healthcare to find that the recommended unit was an inappropriate "fractured unit“)


In acute care hospitals, Rush University Medical

Center, 362 NLRB No. 23 (2015), enforced, 833 F.3d 202 (D.C. Cir. 2016).

Applies only to existing non-conforming bargaining units, Armour-Globe petitioning party need not include ALL employees that would otherwise be included in a unit pursuant to 8-unit health care rule. Sec. 103.30(a)


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NLRB New Union Election Rules