Mike Zinser
By L. Michael Zinser, The Zinser Law Firm
In 2014, the Obama-era National Labor Relations Board made over two dozen changes to the union election rules that drastically shortened the time period between the filing of the petition and the election and limited the types of issues that could be resolved in a pre-election hearing. Thus, the reason the 2014 changes earned the moniker “Quickie Election Rule.” On Dec. 13, 2019, the board, now controlled by a Republican majority, announced a new rule scaling back the 2014 changes. The new rule will restore the First Amendment rights of employers to communicate both sides of the issues before the election. The new rule will give employers more time to communicate and give the board more time to resolve key issues prior to the election.
Rather than rescind the 2014 changes altogether, the board is implementing several specific procedures that modify certain deadlines and timeframes for resolving particular disputes. The new rule includes the following changes:
- The board’s pre-election hearing will generally be scheduled 14 business days from the notice of hearing. Under the current rule, this hearing is normally scheduled eight calendar days from the notice of hearing. The added days are designed to give parties more time to accurately complete early procedural requirements and to prepare for a hearing, if necessary.
- The Statement of Position is now due eight business days after service of the notice of hearing. The petitioning party will now be required to file and serve a Statement of Position on the other parties responding to the issues raised by the non-petitioning party in the Statement of Position. The responsive Statement of Position will be due at Noon three business days before this hearing is scheduled to open. This change gives both parties notice of issues to be raised and the response of the petitioning party in advance of the hearing. This is fairer, giving both sides due process. The old rule allowed the non-petitioning party to be ambushed at the hearing. Under the old rule, the non-petitioning party (usually the employer) was required to file a Statement of Position the day before the pre-election hearing (usually seven calendar days from the notice of hearing) outlining issues to be contested, and the petitioning party (usually the union) could respond live at the hearing.
- Unit scope and voter eligibility issues, such as supervisory status, will now be resolved at the pre-election hearing, unless the parties agree to defer the matter until after the vote. This change marks one of the biggest rollbacks to the 2014 amendments, which postponed nearly all eligibility disputes to after an election. The final rule represents a return to the board’s procedures prior to the 2014 amendments. It will promote fair and accurate voting as well as transparency by better defining the unit in question prior to the election. By encouraging regional directors to resolve issues such as supervisory status prior to directing an election, the final rule will give better guidance to the employees and parties and will help avoid conduct that may give rise to objections or unfair labor practices. Under the old rule, requiring the parties to defer litigation of supervisory issues until after the election placed the employer in an unfair spot. Without clarity about just who had the status of a supervisor, the employer risked engaging in unfair labor practice activity if it mistakenly treated someone as a supervisor. Clarifying that status is critical. Clarity of supervisory status enhances the employer’s First Amendment right to communicate to employees.
- Parties will be permitted to file post-hearing briefs for pre-election and post-election hearings as a matter of right. Under the current rule, the board rarely allowed briefs for pre-election matters, and permission for briefs for post-election matters varied. Under the new rule, such briefs will be due within five business days of the close of the hearing, although hearing officers may grant an extension of up to 10 business days for good cause. Under the prior rule, such briefs were permitted only upon special permission of the regional director. The board acknowledged that this change will extend the time period between the petition and the election, since now there will be a hearing and then a brief-submission period of five to 15 business days.
- The employer’s voter list is now due five business days after the direction of election. The current rule requires that this list be served within two business days. The extra time allows employers to prepare this list once an election is actually ordered, whereas before the very quick deadline effectively required employers to create this list before it even knew who needed to be included
- Under the new rule, elections should normally not be scheduled before the 20th business day after the date of the direction of election, unless the parties agree to an earlier date. The current rule requires that elections be scheduled as early as practicable. The final Rule is largely consistent with board procedures prior to the 2014 amendments which provided that the regional director would normally schedule an election 25-30 days after the issuance of the direction of election. This additional time is key to the First Amendment rights of the employer and is key to employees learning all the facts before they vote.
- All time periods will be in business days. The prior rules had a mix of deadlines based on business and calendar days. This change will likely have its biggest impact when the petition is first filed, since the pre-election hearing will now be 14 business days from when the board serves its hearing notice, as opposed to the eight calendar days that it was before.
- In selecting election observers, whenever possible a party will now select a current member of the voting unit. When no such individual is available, a party should select a current non-supervisory employee. The prior rule simply provided that the parties may be represented by observers. This rule change will reduce litigation over parties’ choices of observers.
- The regional director will no longer certify the results of an election if a request for review is pending or before the time has passed for which a request for review could be filed.
These rule changes are a great victory for the First Amendment rights of employers everywhere. It is also a victory for employees who will now have more time to receive all the facts so they can make an informed decision when they go to the ballot box.
The new final rule will be effective April 16, 2020.
NLRB restores employers’ right to restrict use of email
On Dec. 17, the NLRB restored the right of an employer to restrict employee use of its email systems if it does so on a non-discriminatory basis. This case (Caesar’s Entertainment) effectively reinstates the holding of Register Guard. The NLRB held that employees do not have a statutory right to use employers’ email and other information technology resources to engage in non-work-related communications. Further, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise the right to restrict the ways in which those systems are used, provided that in doing so, they do not discriminate against union or other protected external communications. To this extent, the board effectively reinstated the holding of Register Guard.
This is a great victory for private property rights of employers in the workplace. The Zinser Law Firm, P.C. represented the Register-Guard in the 2007 landmark case.
NLRB approves greater confidentiality in workplace investigations
Also, on Dec. 17, the board ruled that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. This reverses Obama board cases that presumed confidentiality was unlawful unless an employer could prove the integrity of an investigation would be compromised without confidentiality.
When conducting sexual harassment investigations in the workplace, employers need to be able to impose confidentiality to get to the truth of the matter. The board ruled that investigative confidentiality rules limited to the duration of the investigation are lawful. This new standard better aligns with other federal guidance, including the EEOC enforcement guidance.
L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.
