Proposed NLRB Election Rule Changes – Position Statements

Last week, I commented that President Obama’s recent appointments to the National Labor Relations Board could mean significant changes for employers, particularly as it relates to union organizing by employees.  As one particular example, I referred to new election guidelines that have been proposed but that have not been enacted yet.  These new rules would make organizing campaigns faster and would make it easier for unions to launch and prevail in organizing campaigns.

Today, I will highlight the first of several notable rule changes, to explain why I say that.  Let’s look first at the proposal to require pre-election hearing position statements.

Currently, when a union or a group of employees files an election petition with the NLRB, seeking to be recognized as a union, the Board will schedule a hearing to determine a number of threshold issues, such as the appropriateness of the unit (e.g. which job classes should be put together in the same unit).  Prior to the hearing, neither party knows much if anything about what the other is going to be arguing as it relates to these threshold issues.

Under the proposed rule, the Employer would be required to file a Position Statement identifying its position on a number of relevant issues.  The NLRB would be charged with adopting a standard form that would be completed by the Employer to accomplish this.  The Employer Position Statement would be required to:

  • State the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the employer and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the employer.
  • State whether the employer agrees that the Board has jurisdiction over the petition
  • Provide the requested information concerning the employer’s relation to interstate commerce
  • State whether the employer agrees that the proposed unit is appropriate
  • If the employer does not agree that the proposed unit is appropriate, state the basis of the contention that the proposed unit is inappropriate, and describe the most similar unit that the employer concedes is appropriate
  • Identify any individuals occupying classifications in the petitioned-for unit whose eligibility to vote the employer intends to contest at the pre-election hearing and the basis of each such contention
  • Raise any election bar
  • State the employer’s position concerning the type, dates, times, and location of the election and the eligibility period
  • Describe all other issues the employer intends to raise at the hearing.
  • Full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing
  • If the employer contends that the proposed unit is inappropriate, the employer shall also state the full names, work locations, shifts, and job classifications of all employees in the most similar unit that the employer concedes is appropriate.
  • The list of names shall be alphabetized (overall or by department) and be in an electronic format unless the employer certifies that it does not possess the capacity to produce the list in the required form.
  • Copy of Employee List, as delivered to NLRB, also must include the employees’ available telephone numbers, available email addresses, and home addresses.

Some of this information already is required in one form or another, but other bits of information (employee telephone numbers and email addresses, for example) are not currently required to be disclosed.  Sharing this information with the union makes it that much easier for the union to contact (i.e. campaign to) employees, even when employees do not wish to have such information shared.

Additionally, the Employer currently is not required to provide such detail as work locations, shift assignments, and job classifications for employees.  Giving unions this level of detail allows them to prepare better for any organizing efforts.

Note that Unions also would have to file a Position Statement in the event the Petition was filed by the Employer.  In that case, a Union’s Position Statement must include:

  • The name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the individual or labor organization and accept service of all papers
  • All issues the party intends to raise at the hearing.

Clearly, full disclosure is not a consistent goal of the proposed rules.

In future posts, I’ll discuss more of these proposed rule changes that would make it easier for unions to organize.

 

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