This document summarizes key procedural changes to NLRB rules regarding union organizing and elections. It discusses changes that expedite the election timeline, including requiring employers to submit a "Statement of Position" within 8 days of a petition being filed. It also analyzes NLRB decisions like Specialty Healthcare that have made it easier for unions to organize smaller bargaining units. Overall, the new rules alter the leverage between unions and employers by making it more difficult for employers to delay elections through hearings or blocking charges.

1. Bill Cruice, Esq., Executive Director, Pennsylvania Association of Staff
Nurses & Allied Professionals (PASNAP)
Jon Nadler, Esq., Eckert Seamans Cherin & Mellott, LLC

2. 
Newly Promulgated Rules, 79 Fed. Reg. 74308, Subject to Immediate
Legal Challenge
Challenges rejected by:
NLRB: Pulau Corporation, 363 NLRB No. 8 (2015)
District Court: Chamber of Commerce of the U.S. v. NLRB, 118 F.Supp.3d
171 (D.D.C. 2015)
5th Circuit: Associated Builders & Contractors of Texas, Inc.
- 826 F.3d 215 (5 Cir. 2016)
Updated Organizing Procedures Become Effective April, 2015

3. 
Must set forth proposed election details, such as type of
election (manual or mail ballot, etc.), specific dates, times,
location.
Must serve a copy of the petition, a blank Statement of Position
form (NLRB-505), a Description of Procedures (NLRB-4812) on
the employer
Key Procedural Changes Impacting
Petitioners Under New Rules

4. 
A hearing will be scheduled 8 days after petition is filed,
unless petition is docketed after noon, where it could be
pushed to the ninth day post-petition.
By noon prior to day of hearing, employer must submit to
Region its Statement of Position (SOP); the failure to do so
works a waiver of the employer’s right to raise issues
contained within the SOP, with the exception being 2(11)
supervisory status, which can be raised via ballot challenges.
Key Procedural Changes Impacting
Employers Under New Rules

5. 
• SOP must include:
- jurisdictional and commerce information;
- position on appropriateness of unit sought, and if not, the
specific classifications, locations or other employees that must
be added or excluded to make it an appropriate unit;
- must identify individuals the employer intends to contest at
the pre-election hearing and the basis for each contention
Key Procedural Changes Impacting
Employers Under New Rules

6. 
SOP must include:
- must take a position on whether there is a bar to election and
provide employer’s position on preferred election date, time,
logistics as well as any other issue that may be raised at the
hearing;
- must contain full list of names, work locations, shifts and job
classifications of all individuals in proposed unit, and if the
employer believes a different unit is appropriate, must include
such details for the employer’s preferred appropriate unit,
including those employees it seeks to exclude. Sec. 102.63(b)(1)(iii)
Key Procedural Changes Impacting
Employers Under New Rules

7. Should employer raise issues in SOP and/or at the hearing,
they now must make an offer of proof.
RD has the discretion to:
(1) direct an election without a hearing, with an order that
outstanding issues be dealt with through ballot challenges.
(2) order a hearing, request an offer of proof, and then direct
election with outstanding issues being dealt with through
ballot challenges
(3) order a hearing, but require parties to summarize their
positions on the record, sans written briefs;
(4) “Special permission” required to submit written briefs;
sometimes returnable within 2 to 3 days post-hearing.
Key Procedural Changes Under New Rules

8. 
Elections Directed More Expeditiously Under New Rules
3 Key Elements Determine When Election is Set:
(1) Time Required for Issuance of DD&E
(2) Requirement that Notice of Election be posted “at least
3 full working days prior to 12:01 a.m. of the day of
election”
(3) The right of Union to have a voter list for 10 days prior
to the election, but the union can waive some or all of
such time
Key Procedural Changes Under New Rules

9. 
Practically, New Rules Alter the Balance of Leverage Between
Petitioner (Union) and the Employer
Under previous rules, employers could (and did) threaten to force a
delay-inducing hearing, often on questionable grounds, in order to
gain preferred inclusions/exclusions to the bargaining unit and their
preferred election date, typically about 42 days post-petition.
New Rules Impact the Relative Bargaining
Leverage in Setting Election Terms

10. 
Median Days between Petition Filing and:
4/14/15 – 4/15/16
Pre-Election Hearing:
10 14
Election Agreement:
8 11
Election:
24 38
- With Election
Agreement:
23 38
- With Directed
Election:
34 64
Certification: 35 50
Time Between Petition Filing and Election
Reduced; Though Success Rate Unchanged

11. 
GC Memo (GC-08, 9/1/15) confirms that longstanding Board
evidentiary standards apply equally to “electronic
signatures”
Somewhat heightened authentication requirements
Utilization by Unions so far not overwhelming
Properly Authenticated Electronic Signatures
Valid for Showing of Interest

12. 
Prior Rules Easily Facilitated Election Delay With ULP Filing
Under New Rules, parties seeking to “block” election must
submit form (NLRB-5546) making detailed offer of proof,
with witness’ names, summary of testimony
Regions appear to be requiring immediate production of
witnesses
New Organizing Rules and Their Impact on
“Blocking Charges”

13. 
Read in para materia with new procedural rules, a few key
NLRB decisions have capacity to alter organizing landscape
Specialty Healthcare & Rehab Center of Mobile, Inc., 357 NLRB
934 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v.
NLRB, 727 F.3rd 552 (6th Cir. 2013)
Key NLRB Decisions and Their Impact
on Organizing

14. 
 Specialty Healthcare standard for an appropriate unit:
1) Do the employees in the petitioned-for unit have a
community of interest that is “readily identifiable”?;
2) If yes, the party seeking a broader unit bears the burden to
demonstrate that employees in putative larger unit
“share an overwhelming community of interest with those in
the petitioned-for unit.” 357 NLRB at 943-944.
Key NLRB Decisions and Their Impact
on Organizing

15. 
 NLRB and Courts have approved units of:
 Cosmetics/Fragrance Department within much larger Department
Store. Macys, Inc., 361 NLRB No. 4 (2014), enforced 824 F .3d 557
(5th Cir. 2016).
 Maintenance employees within larger ice cream production facility.
Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016)
 City and Over the Road Drivers at Fed Ex terminal but not including
dock workers. FedEx Freight v. NLRB, 816 F.3d 515 (8th Cir. 2016).
Key NLRB Decisions and Their Impact
on Organizing

16. 
 There are Limits to Specialty Healthcare, See, e.g.,
 A.S.V., Inc., 360 N.L.R.B. No. 138 (2014) (applying Specialty
Healthcare and rejecting the proposed unit as "fractured" and
thus inappropriate);
 Odwalla, Inc., 357 N.L.R.B. 1608, 1612-13 (2011) (applying
Specialty Healthcare to find that the recommended unit was an
inappropriate "fractured unit“)
Key NLRB Decisions and Their Impact
on Organizing

17. 
 In acute care hospitals, Rush University Medical Center, 362
NLRB No. 23 (2015), enforced, 833 F.3d 202 (D.C. Cir.
2016).
 Applies only to existing non-conforming bargaining units,
Armour-Globe petitioning party need not include ALL
employees that would otherwise be included in a unit
pursuant to 8-unit health care rule. Sec. 103.30(a)
Key NLRB Decisions and Their Impact
on Organizing