Client Bulletin #451

12.2.11

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This week, the National Labor Relations Board approved a Resolution to move forward with some earlier-proposed changes of rules for union representation election procedures. According to Board Chairman Mark Gaston Pearce (D), the proposed changes are designed to streamline the election hearing and appeal procedures and speed up the election process, a result that would effectively shorten the time period for employers to communicate with employees in representation election campaigns and permit elections to go forward in bargaining units that could be dramatically affected by post-election appeals. Chairman Pearce and Member Craig Becker (D), whose recess appointment will end when the current session of Congress ends later this year, voted in favor of the Resolution, and Member Brian Hayes (R) voted against it. The NLRB promises to post a video recording of the meeting, but it was not posted as we went to press.

Key Aspects

Key aspects of the rules covered in the Resolution involve hearings and appeals at the outset of a representation election case. With respect to hearings, the proposed changes will, among other things,

(1) eliminate the right of parties to file post-hearing briefs in contested election cases, potentially shortening by 7 to 14 days the time between the filing of an election petition with the Board and an election, and

(2) give a Board Region's Hearing Officer power to allow post-hearing briefs and set a time period for any such briefs and "to limit the evidence introduced at the hearing to that [which is] relevant to a genuine issue of fact material to [the question of] whether a question of representation exists."

On the subject of appeals, the proposed changes will eliminate the right of a party to file a pre-election appeal after the post-hearing decision in a contested representation case. Instead, any appeal to the Board will be discretionary, rather than a matter of right. Elimination of the pre-election appeal process will, in turn, eliminate the need for the Board's current practice of scheduling elections no sooner than at least 25 days after a hearing decision and direction of election to allow time for review of a pre-election appeal to the Board. Ultimately, the result of the changes, if adopted, will effectively mean that an election could be held less than 25 days after a petition is filed.

Practical Implications

The practical impact of the proposed changes may include the following:

  • Hearing Officers of a Board Region will have substantial discretion to limit hearing issues. Issues related to voter eligibility, supervisory status, and unit scope probably will not be heard pre-election because the Regions are likely to decide that those issues can be addressed by the challenged ballot procedure or be raised in a post-election appeal. Thus, campaigns and elections will be held even though uncertainty exists as to the scope of the unit, who is or is not in the unit, and who is or is not a supervisor. Employees will not know for sure who is in their unit when they vote. Employers will not know for sure who is or is not a supervisor for purposes of campaigning. An increase in the number of unfair labor practice charges related to alleged supervisory conduct may be the ultimate consequence of limiting hearing issues.

  • Elimination of the right to post-hearing briefs potentially eliminates 7 to 14 days between the petition's filing and the election.

  • Elimination of pre-election appeals eliminates any need for election delay for review of such appeals. An election thus may be held with no delay and less than the current minimum of 25 days after a hearing decision.

  • An employer's leverage in getting a date the employer deems acceptable for an election will be gone because the employer cannot bargain away some or all of the hearing issues in order to get the election date it wants. Under current rules, insisting on a hearing effectively ensures an employer of at least 32 days to communicate its message to employees once an election is set. As a practical matter, many employers bargain away the hearing issues to get an election date deemed fair. Under the proposed rules, an election could be set for a date very soon after a hearing, even as little as 10 days. Regional Directors can be expected to attempt to schedule elections as soon as reasonably possible, probably between 21 and 25 days after the filing of the petition. It is possible that elections might be scheduled even sooner.

What's Next

The Resolution expressly provides that "no final rule shall be published until it has been circulated among the members of the Board and approved by a majority of the Board" and that the Board will continue "to deliberate on the remainder of the amendments proposed in the [earlier-proposed rulemaking]." We can expect these final rules in December, before a quorum of three on the Board is lost due to the end of the recess appointment of Member Craig Becker.

If you have any questions about these proposed changes, please contact any member of Constangy's Labor Relations Practice Group, or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 130 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com. 

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