HOW IS THE NLRB S NEW ELECTION PROCESS AFFECTING CAMPUS ORGANIZING? Jonathan C. Fritts June 9, 2015 2015 Morgan, Lewis & Bockius LLP
Agenda Overview of the NLRB s new election process and its implementation Status of pending litigation challenging the NLRB s rulemaking How is the new election process being applied at colleges and universities? 2
THE NLRB S NEW ELECTION PROCESS
The NLRB Current Members Mark Pearce 8/27/18 Phil Miscimarra 12/16/17 Lauren McFerran 12/16/19 Kent Hirozawa 8/27/16 Harry Johnson 8/27/15 4
History of the NLRB s Rulemaking Process 2011 Rulemaking Process: Election rule invalidated by U.S. District Court for the District of Columbia (May 14, 2012) NLRB lacked a quorum to issue the final rule (2-0 vote) Voluntary dismissal of NLRB s appeal to D.C. Circuit (Dec. 2013) 2014 Rulemaking Process: NLRB issued notice of proposed rulemaking (Feb. 6, 2014) Final rule issued on December 15, 2014, effective April 14, 2015 Final rule approved by full Board (3-2 vote) (both Republican Board members dissenting) 5
How Quickly Were Elections Held Prior to the New Rules? Poll question: Prior to the new rules, how quickly did NLRB elections occur, on average, after the union filed a petition? a) 56 days b) 42 days c) 38 days 6
Stipulated Election Agreements Poll question: Prior to the new rule, what percentage of NLRB elections were held pursuant to an election agreement, rather than a litigated decision? a) 25% b) 50% c) 90% 7
How Quickly Can an Election Occur under the New Process? Poll question: Under the NLRB s new process, how quickly can an election occur after the union files an election petition? a) 10 days b) 14 days c) 23 days 8
How Quickly Can an Election Occur in a Litigated Case under the New Process? Day 1: Petition filed Day 7: New mandatory position statement filed (by noon) Day 8: Hearing opens and closes Day 11: Transcript arrives at NLRB Regional Office. Day 11: Decision and Direction of Election issued by Regional Office, and Notice of Election is sent Day 13: Excelsior list due Day 14: Notice of Election posted for three days and election can be held if union waives 10 day period to use the Excelsior list Day 23: Earliest election date if union does not waive Excelsior list time 9
Changes in the Initial Process Election petition can be filed electronically, including showing of interest New form for the election petition The union is responsible for serving the employer. The NLRB will do so also. New mandatory Notice of Petition must be posted within two days and remain posted until Notice of Election issues Hearing scheduled on the 8 th day after the petition is filed Stricter standard for postponing the hearing 10
The New Position Statement Requirement New requirement that a position statement be filed by the employer by noon on the day before the hearing, and served on the union Employer must state whether it agrees that the proposed unit is appropriate. If not, it must give its basis for contention that it is not appropriate. Must identify the issues the employer intends to raise at the hearing. Must suggest day, time, location, and eligibility period for the election. Must provide alphabetized list of names, work locations, shifts, and job classifications of all employees either in the petitioned-for unit or in the unit the employer proposes. Failure to raise an issue in the position statement precludes the employer from litigating the issue at the hearing. 11
Pre-Election Hearing Hearing limited to determining whether a question of representation exists and whether the unit is appropriate. NLRB distinguishes between appropriate unit and eligibility to vote. Only the former must be litigated. Regional Director may defer eligibility issues under after the election, especially if disputed employees constitute less than 20% of the unit. Other issues that can be litigated at the hearing: Jurisdiction (including whether the university is a religious institution) Labor organization status Bars to the election Positions on the date, time, and place of election will be solicited at the close of the hearing. But no litigation on these issues. Parties can argue orally, but no post-hearing briefs unless the Regional Director grants permission. 12
Decision and Direction of Election Regional Director will wait for transcript normally three days. Election will be scheduled for earliest date practicable. No 25-day waiting period for request for NLRB review of Regional Director s decision. Within two days after issuance of decision, employer must produce alphabetized Excelsior list that includes information previously submitted plus: Home addresses Available personal email addresses Available home and personal cell telephone numbers The Union is entitled to use the Excelsior list for 10 days unless it waives that time. 13
Election and Post-Election Matters Employer must post Notice of Election for three full working days before the election and distribute it electronically if it communicates with employees that way. At the election, a party can challenge a voter for cause even if that person s eligibility was not contested at the hearing. Objections to election must be accompanied by a written offer of proof. The offer of proof need not be served on the other party. Challenged ballots, if determinative, and objectionable conduct are considered in the same hearing. Post-election requests for NLRB review are discretionary 14
Judicial Review of NLRB Decisions in Election Cases Poll question: Are the NLRB s decisions in election cases subject to judicial review? a) Yes b) No 15
THE STATUS OF LITIGATION CHALLENGING THE NLRB S NEW ELECTION RULES
Challenges to Quickie Election Rules Complaint filed on January 5, 2015 in the U.S. District Court for the District of Columbia Five plaintiffs: Chamber of Commerce, CDW, NAM, NRF, and SHRM Case assigned to Judge Amy Berman Jackson Judge Jackson issued first district court decision on NLRB s 2011 notice-posting regulation and partially upheld the regulation Upheld general right to issue notice-posting regulation Rejected creation of new ULP over failure to post Rejected automatic tolling of statute of limitations 17
DC Litigation Timeline Plaintiffs filed their summary judgment motion and supporting brief on February 5, 2015 Briefing now completed: March 6 NLRB opposition/supporting brief filed March 25 Plaintiffs reply/opposition brief filed April 1 NLRB reply brief filed Final rule went into effect on April 14, 2015 since no decision on summary judgment or other court action Hearing held on May 15, 2015 Awaiting decision 18
The Baker DC Case Baker DC, LLC v. NLRB filed in DDC on April 17, 2015: Based on actual petition filed and processed under the new rules Assigned to Judge Jackson Consolidated with Chamber case Motion for temporary restraining order denied on April 22, 2015 19
The Texas Case Associated Builders and Contractors of Texas, Inc. v. NLRB (U.S.D.C. W. D. Tx.) Facial challenge to NLRB s election rule Court granted NLRB s motion for summary judgment on June 1 Court found that the facial challenge was ripe based on petitions that had been filed across the country, including the Baker DC case But the Court rejected the plaintiffs challenge to the new election process on the merits 20
Appropriate Hearing Arguments The Texas court rejected the argument that the final rule violates Section 9(c)(1) of the NLRA by restricting an employer s ability to litigate issues of voter eligibility and inclusion at the pre-election hearing The final rule draws a distinction between appropriate unit issues and issues of voter eligibility or inclusion The court held that Regional Directors have discretion to permit the litigation of voter eligibility/inclusion issues In a facial challenge, the standard is whether there is no set of circumstances in which the final rule would be valid The court also rejected the argument that the mandatory position statement violates the NLRA 21
Privacy Arguments The Texas court rejected the argument that the final rule violates privacy interests through mandatory disclosure of employees personal phone numbers and email addresses The court did not believe that disclosure of personal email and phone numbers is more invasive than disclosure of home addresses because virtual contact can be readily ignored. Although there is a risk of hacking and identity theft, the court credited the Board s determination that these are risks worth taking in order to enable communication about union organizing through the tools of communication that are prevalent today The court also relied on the final rule s admonition that the parties shall not use this information for purposes other than the representation proceeding, Board proceedings arising from it, and related matters. 22
Interference with Speech Arguments Legislative history of the NLRA indicates that Congress believed that there should be a minimum of 30 days before an election, in order to engage in speech related to the election. The court dismissed this legislative history because the text of the statute does not prescribe a minimum 30 day period. The court also found that the Board may react to change, including more efficient methods of communication. Because the Regional Director has discretion in setting the election date under the new process, the court found it virtually impossible to show that the election date violates free speech in the context of a facial challenge. 23
Arbitrary and Capricious Argument Agency action is arbitrary and capricious if the agency: 1) Relied on factors that Congress did not intend the agency to consider; 2) Failed to consider an important aspect of the problem; 3) Offered an explanation for its decision that runs counter to the evidence before the agency; or 4) The explanation is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise. 24
Arbitrary and Capricious Argument Rejected The Texas court rejected the arbitrary and capricious argument because the court found that: 1) The NLRB properly considered speed as a factor in scheduling elections. 2) The NLRB considered other aspects of the problem of delay in holding elections, such as delays caused by blocking charges. 3) Even if the existing election process was working well, the NLRB can still seek to improve it. 4) The NLRB implemented the new process after an exhaustive and lengthy process, involving presentation of evidence and testimony by numerous parties. 25
HOW IS THE NEW PROCESS BEING APPLIED AT COLLEGES AND UNIVERSITIES?
Early Case Example Ithaca College, 03-RC-150147 Petition filed by SEIU Local 200 on April 15, 2015 Part-time faculty unit Stipulated election agreement entered on April 22, 2015 Mail ballot election began on May 11, 2015 Ballots counted on May 28, 2015 27
Takeaways Be prepared for quick elections and campaigns (4 weeks or less) Make sure the NLRB knows where to send a petition if filed Be prepared to submit a position statement and employee information promptly Identify potential categories of employees who may be in dispute and be prepared to litigate those issues If denied the ability to litigate certain issues, preserve those issues for court review (through position statement and offers of proof at hearing) 28
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