PERB Emergency Rules Regarding Union Retention and Recertification Elections
August 14, 2017 | Jim Hanks, Shareholder, Ahlers Cooney
On July 20 and 24, the Iowa Public Employment Relations Board (PERB) held public meetings to receive comments and questions on drafted emergency administrative rules addressing union retention and recertification elections created by the February 17, 2017 amendments to Chapter 20. Several union representatives attended these meetings and offered public comment. Ahlers & Cooney attorneys attended both PERB meetings and provided input from the public employer’s perspective. Ultimately, PERB approved its draft administrative rules. These rules will be considered by the legislative Administrative Rules Review Committee on August 4. Ahlers & Cooney will continue to monitor the status of these emergency rules.
PERB’s draft emergency rules contain several provisions of relevance to public employers, including:
Employers Must File Collective Bargaining Agreements with PERB
Section 20.29(2) of the Iowa Code requires that public employers file a copy of a collective bargaining agreement with PERB within ten days of entering into the agreement with the union. If an employer fails to file a collective bargaining agreement with PERB, the agency will presume the maximum permitted duration of an agreement for the purposes of scheduling a retention and recertification election (five years for most units) unless the employer subsequently submits a collective bargaining agreement that allows PERB to conduct an earlier election.
Employer Obligation to Provide Voter Eligibility Lists to PERB
Chapter 20 of the Iowa Code now requires retention and recertification elections prior to the expiration of a collective bargaining agreement to determine if the bargaining unit employees wish to continue to be represented by the certified representative. For collective bargaining agreements with a June 30 expiration date, an election must be held not earlier than June 1 or later than November 1 in the year prior to the expiration of the agreement.
The first step of the retention and recertification election process involves PERB’s determination of whether an election is required. It makes this determination by reviewing its contracts on file, and examining which will expire within the next year. It is therefore imperative that public employers ensure that their current contracts are filed with PERB as described above. When PERB determines that a contract is set to expire, the agency will email notice of intent to conduct an election (“Notice of Intent”) to the employer and union.
Within seven days of PERB filing the Notice of Intent, an employer must email to PERB an alphabetical list of all eligible voters (“eligible voter list”). Eligible voters are defined as: employees employed in the bargaining unit during the payroll period immediately preceding the direction of election and those who are employed in the bargaining unit on the date of the election. The list provided by the employer must contain the following information: Employee Name; Job Classification; Address; Work Email Address; Other Known Email Address; Last Four Digits of Social Security Number; and Date of Birth.
Employers must also email to PERB any additions or deletions of employees or changes in job classifications or addresses to reflect the current status of eligible voters after it initially emails the list to PERB.
It is critical that employers timely provide PERB with the eligible voter list. Under the proposed rules, an employer’s failure to do so may result in PERB refraining from conducting the election, filing an order recertifying the union without an election, and requiring the employer to reimburse the agency or union for the election costs already incurred. If an employer believes a notice of intent for an election is in error because a contract is not scheduled to expire, the employer should promptly call PERB to ensure that the current contract is filed with PERB and contact legal counsel.
Employer Obligation to Post and Circulate Election Notice
After the union pays the applicable election fee to PERB in response to the agency’s Notice of Intent, PERB will file a Notice of Election. This Notice of Election will be provided to the employer electronically and will contain: information about how an employee is to vote, a sample ballot or script, the dates of the election period, the time, place, method, and purpose of the election, and other information deemed appropriate by PERB. The employer is required to post the contents of the Notice of Election in the manner and in locations customarily used by the employer for the timely distribution of information to its employees. For example, if an employer customarily distributes information to employees via email or by hard copy, it should also promptly distribute the notice to employees by those means unless doing so is unworkable due to timing.
Following the election period, results will be sent to the parties electronically and posted on PERB’s website. If a majority of the employees in the bargaining unit do not vote to retain and re-certify the representative, the representative is immediately decertified and the employees are barred from seeking a new representative for two years. In addition, any current contract becomes unenforceable.
Retention and Recertification Schedule
PERB has made a tentative schedule for conducting its first round of retention and recertification elections. If you have a collective bargaining agreement scheduled to expire June 30, 2018, note the following important dates:
August 22, 2017: PERB electronically serves notice of intent to conduct an election to employers and unions with contracts that expire on June 30, 2018.
August 29, 2017: Deadline for employer to email PERB the list of employees eligible to vote, along with the additional information required by PERB listed above.
September 11, 2017: Deadline for the employee organization to pay for the election or request an extension to pay.
October 10-24, 2017: Election period during which employees may cast their votes for or against continued representation.
Best Employer Practices Relating to Election Conduct
The reality is that the union retention and recertification elections brought about by the changes to Chapter 20 will be the first PERB-conducted election many public employers have encountered in decades. We have prepared a brief summary outlining the type of conduct that employers and supervisory employees can and cannot engage in related to retention and recertification elections:
Employer and Supervisory Employee Conduct During Retention and Recertification Elections
Inform employees of their rights under the law
Clarify false or misleading statements
Advise employees to contact PERB for more information
Encourage employees to vote freely
Discipline employees for union activity
Treat pro-union and non-union supporters differently in the workplace
Prohibit an employee who is campaigning for or against the union from doing what other employees are permitted to do (such as campaigning during non-work time in non-work areas)
Ask employees about confidential union matters
Ask employees about their support/opposition to the union
Threaten or coerce employees
Promise a reward/future benefit
Make a prediction of future conduct based on the election result
Use documents to indicate endorsing a specific choice on the election ballot
Make campaign speeches to groups of employees during work hours in the 24 hours prior to the election
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