On November 30, 2011, the National Labor Relations Board (“Board”) voted 2-1 to advance certain proposed rules to expedite the current union election process and significantly limit employer participation in that process. The proposed rules will be drafted in final form for eventual publication in the Federal Register and re-voted by the Board. Uncertainty lingers, however, because the final vote must occur before expiration of Member Craig Becker’s recess appointment when Congress adjourns for the year. While the proposed rules are not as onerous as originally proposed by the Board, (1) they would effectively minimize an employer’s time to express its views about bargaining with its employees and (2) will eliminate any legal pre-election challenge to contested issues such as the scope of the bargaining unit and voter eligibility.

The New Rules

The Board is responsible for administering representation elections under the National Labor Relations Act (“NLRA”). Historically, the Board adheres to an internal policy designed to schedule elections within approximately six weeks after the filing of a representation petition. As indicated by the Board’s annual statistics, the actual elections in the overwhelming majority of cases fell within this six-week benchmark, because most are usually conducted pursuant to election agreements.

The Board’s proposed rules would significantly reduce the time between the filing of a representation petition and the election. This cut from filing to election leaves employers with significantly less time to present their views on unionization and bargaining to their employees and to attempt to convince employees that the union’s side of the story is not the only side.

Specifically, the proposed changes that the Board acted on include:

  1. Authorizing hearing officers to limit any pre-election hearing issues only to whether an election should be held. Previously, employers could challenge election unit scope, and voter inclusion/exclusion eligibility issues, such as supervisory, casual, or confidential employee status. These issues will now be raised only after the election.
  2. Authorizing the hearing officer to decide whether to permit the parties to file post-hearing briefs. Previously either party had the right to file post-hearing briefs.
  3. Eliminating all pre-election review and consolidating pre- and post-election issues in a single, post-election request for review.
  4. Eliminating the Board’s discretionary option to postpone elections to resolve a pre-election request for review.
  5. Eliminating the practice of special appeals at the hearing stage of the proceeding.
  6. Giving the Board discretion on whether to hear and decide appeals, thus eliminating what had been either party’s guaranteed right to appeal on election issues.

The Board has yet to act on a number of additional proposed changes which still require further deliberation.