Regulation Changes With Regard to Unions

With the recent National Labor Relations Board (NLRB) ruling redefining joint employer status, more employers may have to be conscious of the changing regulations regarding collective bargaining procedures. Throughout 2015, the NLRB has issued some updates to the rules governing union elections and petitions. Companies that may now be categorized as a joint employer, and therefore potentially subject to union activity of the shared workforce, should review these updated rules, summarized below.

New Rules Lead to Much Swifter Elections

On April 14, 2015, the NLRB’s updated rules regarding the conducting of union elections went into immediate effect. These rules were designed to speed up the election process, shortening the median time from initial petition filing to elected representation by 15 days. Although unions have been satisfied with the much more rapid procedure, the changes in policy could be difficult for employers to follow given that they will have less time to campaign and must comply with several deadlines throughout the process. Important changes in policy that employers should take note of include the following:

• As opposed to the previous in-person, mail, or fax filing methods, unions can now file petitions electronically with the NLRB.
• Upon being served a petition, employers must post the detailed election notice immediately and distribute such notice to employees via e-mail, if the company customarily uses e-mail communication with its employees.
• Employers must file and serve on the union a statement of position regarding any issues that will be heard at the pre-election hearing by noon of the business day prior to the hearing. Failure to raise an issue in the statement of position will result in a waiver from presenting evidence on the issue. Previously, no such requirement existed.
• Pre-election hearings to resolve disputed issues must be held within 8 days of the employer being served the notice of petition. Previously, varying practices by region resulted in unpredictable hearing dates. This change sets a uniform standard for when pre-election hearings will be held.
• Employers are required to provide the union with a preliminary voter list one business day prior to the pre-election hearing, consisting of full employee names, work locations, shifts, and job classifications in the bargaining unit.
• Employers must provide to the NLRB and the union the Excelsior employee eligibility list, consisting of full employee names, contact information, work locations, shifts, and job classifications, within 5 days after an election is ordered.

Electronic Signatures Further Expedite Petitions

In addition to the NLRB’s swifter election rules, the NLRB’s General Counsel recently put forth a guidance memorandum authorizing unions to collect petition signatures by digital means. This memorandum was issued on September 1, 2015. Prior to September 1, unions had to collect dated signatures on physical signature lists or authorization cards. Unions need to provide evidence that at least 30% of the bargaining unit supports the petition. In some industries, collecting those signatures was difficult due to decentralized work locations or frequent contact information changes. By going digital, unions will be able to reach out to hundreds of workers much more quickly, utilizing company e-mail or social networking platforms. This enables unions to attempt to collect signatures in a timelier manner.

Employers whose workers participate in a collective bargaining agreement, or employers who anticipate such activity in their workforce, should keep these regulations for expedited petitions in mind and adjust their strategy for handling possible union activity accordingly.