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NLRB Proposed Rule on Elections Would Require Employer Position Statement

By Allen Smith  4/9/2014
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The shortened time frame between petitions for union elections and the elections themselves isn’t the only concern employers have about the so-called ambush election proposed rule.

There also is a requirement that an employer submit pre-hearing position statements identifying the bargaining unit that it concedes is appropriate and the names, locations, shifts and job classifications of the proposed unit employees.

“If the employer takes no position, it is foreclosed from challenging the appropriateness of the unit later,” noted Roger King, an attorney with Jones Day, in April 7, 2014, comments to the National Labor Relations Board (NLRB) on behalf of the Society for Human Resource Management and the HR Policy Association. “The proposed rules also prohibit a party from raising any issue, presenting any evidence relating to any issue, cross-examining any witness concerning any issue and presenting argument concerning any issue that the party failed to raise in its timely statement of position.”

King observed that “such a procedure requires an employer to take a position with very little information or time for meaningful thought and analysis, and prohibits the employer from reassessing its position on the basis of later-acquired evidence.”

‘Significant Departure’

“Currently there is no statement of position and no requirement of one” during the election campaign period, noted Michael Lotito, an attorney with Littler in San Francisco and co-chair of the firm’s Workplace Policy Institute. “This is a significant departure,” he said. Lotito pointed out that unions do not have to file a position statement and said the document would have to be extremely complex since an argument would be waived if it isn’t mentioned in the statement.

Lotito said the position statement is like free, one-way discovery and called it “a fundamental violation of due process.”

The union will have, in essence, shared its position in its petition to organize, a document it will have months to prepare in order to identify the jobs in a bargaining unit most likely to lead to a successful election outcome for the union, noted Clifford Nelson Jr., an attorney with Constangy, Brooks & Smith in Atlanta. But the union doesn’t have to reply to the employer’s position statement.

The position statement would be due seven days after the petition to organize is filed.

Helping inside or outside counsel complete the position statement and identify who is in and out of the unit and who supervisors are, among other issues, will be HR’s “number one, two and three priority. All other responsibilities of HR will stop functioning” to help counsel get this ready in just seven days, Lotito remarked. “This is a fundamental game changer for HR.”

He said that the overarching theme of the proposed election rule is speed. “This is about speed, not informed choice, and that’s wrong,” he stated.

Concern Among HR Executives, Attorneys

Lotito believes that senior HR executives at larger companies are “very concerned” about the proposed rule, but that HR generalists at smaller companies sometimes dismiss the significance of recent board initiatives, including this proposed rule, because they haven’t had union activity.

That standpoint is a mistake, according to Lotito, who said the reason the board has proposed rules like the ambush rule is precisely because there hasn’t been a lot of recent union activity.

Nelson cautioned that some employers may think they can just go into the hearing with the NLRB a week after the petition and let the NLRB help put together its position statement. That would be like asking the Internal Revenue Service to do tax returns for them, he said.

“An employer that wanders into this without expertise will find itself behind the eight ball quickly,” he added. “While there are many good and fair people at the NLRB, employers should not approach the agency without a fair amount of skepticism.”

A general lawyer handling position statements and hearings before the NLRB may think it’s like an unemployment compensation hearing and “everyone yuks it up,” Nelson added. And “the hearing officer may say it’s not an adversarial proceeding. But it is from where I’m standing.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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