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April 13, 2015

Employers’ Initial Obligations Upon the Filing of Election Petitions Under the New NLRB Rules

The new NLRB expedited union election rules, scheduled to go into effect on April 14, 2015, drastically restructure NLRB representation proceedings and impose very significant new obligations on employers. The rule changes promise to reduce the amount of time an employer has to challenge a union organizing effort. The rules are being challenged in litigation, but at present the NLRB’s Regional Offices plan to move forward with the new rule changes.

Significant Penalties on Employers

The purpose of this alert is not to analyze the extensive new rules. Rather, given the significant penalties imposed on employers for failure to comply with the initial requirements imposed by the new rules, the objective of this alert is to call employers’ attention to the initial obligations imposed on them, upon receipt of a “Notice of Hearing” from the NLRB.

A. Notice of Hearing

In essence, upon the filing of a petition for a certification election with a Region of the NLRB, the employer named in the petition will be served on the same date as the filing, if at all possible, with a “Notice of Hearing,” a “Notice of Petition for Election,” a “Position Statement” form, a variety of other forms and a letter requesting that extensive information be provided by completion of the “Position Statement” form.

B. Two Days for Posting

Within two days after service of the “Notice of Hearing,” the employer must post the “Notice of Petition for Election” and distribute it electronically, if the employer customarily communicates with its employees electronically.

C. Eight Days for Hearing

The Notice of Hearing will generally schedule the pre-election hearing to open eight calendar days from the date of the Notice (which in most cases will be the same date of the filing of the petition).

D. Statement of Position

The employer is required to file, no later than noon on the day before the hearing, a statement of position (one of the new forms provided with the Notice of Hearing) which must include:

  1. All issues that the employer wishes to litigate at the hearing;
  2. If the employer contends that the unit, described in the petition, is not appropriate, the basis for such contention and the classifications and locations of all employee groups that must be added to or excluded from the proposed unit in order to make it appropriate;
  3. Alphabetized, electronic lists of employees in the proposed unit, with full names, work locations, shifts and classifications;
  4. Alphabetized, electronic lists with same information of those employees that the employer contends should be added to or excluded from the proposed unit;
  5. List of individuals whose eligibility to vote the employer intends to contest at the hearing and the basis for such contention;
  6. Date, time and place of the election; and
  7. Any other election matters.

E. Conclusion

The penalty for failure to comply with the above requirements is that any issues omitted by the employer from the Statement of Position are waived by the employer and may not be raised later. The unit, as requested by the petitioning union, would, in most cases, be accepted as appropriate by the NLRB Regional Director when ordering that the election be held. Given the shortened time frames, companies should update training of front-line supervisors and ensure all personnel who might receive a NLRB Notice of Hearing are alerted to contact senior management immediately upon receipt.

In light of the penalties imposed for failure to comply with the new initial requirements, employers may wish to seek legal counsel and compile the above described information immediately upon receipt of the above described communications from the NLRB.

Jerry Morales is Of Counsel in the Phoenix office of Snell & Wilmer. His practice is concentrated in labor, employment and construction law.

John Lomax is a Partner in the Phoenix office of Snell & Wilmer. His practice is concentrated in defense of labor and employment matters.

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©2015 Snell & Wilmer. All rights reserved. The purpose of this legal alert is to provide readers with information on current topics of general interest and nothing herein shall be construed to create, offer or memorialize the existence of an attorney-client relationship. The content should not be considered legal advice or opinion, because it may not apply to the specific facts of a particular matter. Please contact a Snell & Wilmer attorney with any questions.