Seyfarth Shaw LLP “Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). Seyfarth Shaw LLP The Obama NLRB’s Legacy: How Much Will Survive? Jack A. Lambremont, Braford L. Livingston, John L. Telford, and Kyllan B. Kershaw 1
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• Decision and Direction of Election issued shortly after the hearing.
• Voter (Excelsior) Lists:
– Due within two business days from Decision and Direction of Election or approval of election agreement.
– Electronic format, including full names, home addresses, “available” non-business e-mail addresses, “available” non-business home and cell numbers, work locations, shifts and job classifications.
• Notice of Election: Must be posted for 3 full working days and distributed electronically if employer customarily communicates that way
• Failure to properly submit the Excelsior List and post the notice is grounds for setting aside election
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NLRB Rule on “Streamlined” Elections
• The Election:
– Election must be set at “the earliest date practicable.”
– Not set time frames, but most elections likely will end up
being held within two or three weeks.
– Will substantially reduce an employer’s pre-vote opportunity
to litigate.
• Post-Election Procedures:
– Right to have the NLRB review decisions by a Regional
Director or an Administrative Law Judge has been
eliminated. Review is discretionary.
– Regional Director will set a post-election hearing 14 days
after the tally of ballots (or as soon thereafter as practicable).
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NLRB Rule on “Streamlined” Elections
• The so-called “Quickie Election” rules are here to stay (unless a
different Board changes its mind).
– Legitimacy of rules affirmed by 5th Circuit in June; Judge in
D.C. Circuit likewise rejected similar challenge
• Given 5th Circuit’s reputation as a relatively conservative court,
future challenges to the rules are unlikely to succeed.
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The NLRB’s Election Rules: Where Things Stand
• Changing the Rules would presumably require another Formal
Rulemaking process.
– Drafting NPRM
– Notice
– Comment
– Preparation of Final Rule
– Effective Date
• Rulemaking resulting in 2015 changes took 14 months from
NPRM to effective date of new rules
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The NLRB’s Election Rules: Where Things Stand
• While a Trump Board could adopt a more flexible approach on
election timelines, other elements of the new rules would remain
in effect:
– Posting of Notices
– Preliminary voter lists
– Statements of Position
– Excelsior Lists
– Etc.
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The NLRB’s Election Rules: Where Things Stand
• Number of elections: NLRB held 1,628 representation elections in
2015-a five-year high and a 10% increase from 2014.
• Union win rate: 69.3 percent
– Slightly down from 69.5 percent in 2014
• Full story:
– 6% increase in petitions proceeding to election in 2015
– Increased number of union wins in right-to-work states
– Unions winning more decertification elections
– Median days from petition to election has dropped from 27 to 25
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Impact of the New Rules for Employers
• Beware challenging the Union’s designated observer, even if:
– Observer is a non-employee union official (Longwood
Security)
– Observer is an employee terminated for serious misconduct
and workplace violence issues (Equinox Holdings, Inc.)
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Wacky NLRB Rulings on Election Observers
• Brunswick Bowling: Beware of Preclusion
– No showing of prejudice required
– Speak now or forever hold your piece: employers must raise
ALL issues in the Statement of Position in a timely fashion
• Premier Utility Services: Another reason for employers to avoid
a mail-ballot election
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Other Takeaways for Employers Facing Elections Under New Rules
Labor Negotiations – the Board’s Effort
to Tilt the Scales in Favor of Union
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• Degradation of Management Rights
• Expanding the Union’s Right to Company Information During
Bargaining
• Shifting the Post-Expiration Power Dynamic
• Redefining Successorship
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During CBA
• Management Rights Clause is ALIVE
• But see Graymont PA
After CBA
• Management Rights Clause is DEAD
• See Du Pont
• Extra note: “Stone Container” flexibility also non-existent
Both?
• What if you plan and announce the change before the CBA expires, but the change does not occur until after the CBA expires?