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In June 2011, the National Labor Relations Board (“Board”) published a Notice of Proposed Rulemaking which proposed comprehensive changes to the way union elections proceedings will occur.
On November 30, 2011, the Board voted 2-to-1 to move forward with some, but not all, of the amendments to the election procedure. Specifically, the Board intends to draft a final rule that contains six procedural amendments. Generally, the rules revise the process for union representation elections and shortens the time from filing an election petition until the actual vote is held. Some of the major amendments:
Post Election Hearings: The new rules would give the hearing officer authority to limit pre-election hearings to only address questions of representation that must be resolved prior to an election—for instance, to determine whether a petition has been filed in a unit appropriate for collective bargaining.
Appeals: The Board’s current rules require parties to file separate appeals to seek Board review of pre-election issues and issues concerning the conduct of the election, respectively. Because appeals concerning pre-election issues must be filed before the election, and are often subsequently mooted by the results of the election, the Board determined that review of potentially moot issues is a waste of Board resources. The new rule therefore consolidates the two appeals into a single post-election procedure.
Consolidation of Appeals: Under the current rules, the ability to seek resolution of pre-election issues not only enables employers to clarify vital issues, but in the process, also provides employers with more opportunities to educate employees on the issues of unionization. History clearly demonstrates that the shorter the time frame between the filing of an election petition and the actual secret ballot vote, the more likely it is that the union wins the election. Employers who have more time to educate their workforce are far more likely to help employees realize that having a union is often not what they are led to believe during the extended stealth campaigns conducted by organizers before an election petition is filed. The elimination of the pre-election appeal would serve to limit the time in which employers have to educate affected employees prior to an election.
Quickie Elections: Along these same lines, the new rules would end the practice of delaying the scheduling of elections to permit time for a pre-election appeal. By eliminating the pre-election appeal, the new rule similarly removes language in the current rules that states that a vote cannot be held sooner than 25 days after the regional director issues a Direction of Election.
The new rules also clarify that the standard for seeking permission to appeal to the Board requires a showing of extraordinary circumstances on an issue that would otherwise evade review. They provide hearing officers with the discretion to determine if and when a party may file a post-hearing brief. Finally, the new rules would make Board review of a regional director’s or judge’s resolution of post-election disputes discretionary after both stipulated and directed elections.
The Board did not vote on some of the more controversial of the proposed amendments, which included:
Requiring that a hearing be held within seven (7) days after service of the notice that the union filed a representation petition;
Permitting the union’s petition to be filed electronically, as opposed to the current requirement that it be filed by hand or regular mail;
Requiring the employer prepare a position statement no later than the date of the hearing, and precluding the employer from raising any issues omitted from the position statement;
Requiring the employer to include employee e-mail addresses and telephone numbers on the voter eligibility list.
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