NLRB To Change Union Election Rules Before Year's End

Practical Law Legal Update 0-514-8789 (Approx. 5 pages)

NLRB To Change Union Election Rules Before Year's End

by PLC Labor & Employment

Published on 01 Dec 2011 • USA (National/Federal)

On November 30, 2011, the three member panel (Board) in charge of setting the National Labor Relations Board's (NLRB) election procedures under the National Labor Relations Act (NLRA) voted to advance portions of a controversial proposed rule to change those procedures. The Board majority plans to approve and publish a final rule incorporating these changes by the end of December 2011.

The three member panel (Board) in charge of setting the NLRB's union election procedures announced on November 18, 2011 a plan to vote on proposed rule to change to its union election procedures, as detailed in Legal Update, NLRB Announces Vote on the Proposed Changes to the Election Rules. On November 29, Chairman Pearce published a resolution describing the intended amendments and an explanation of them. There he also explained that the Board will continue to consider the remaining proposed changes.

On November 30, 2011 the Board voted to draft a final rule adopting six components of its June 22 proposed rulemaking to expedite union elections. The Board majority (Chairman Pearce and Member Becker) voted for the resolution, believing it necessary to finalize and approve a rule incorporating at least parts of the June 22 proposed changes before the close of the year, when Member Becker's term expires and the Board loses a three-member quorum required for it to act (see New Process Steel, L.P. v. NLRB).

The components of the proposed changes that will be addressed in the final rule:

Gives an NLRB hearing officer, who may not be an attorney, discretion to:
- limit a pre-election hearing to matters relevant to the question of whether an election should be held;
- decide whether or not to permit post-hearing briefs, depending on whether the case presents issues that would benefit from briefing.
Eliminates pre-election appeals to the Board challenging regional director determinations, including decisions on voter eligibility issues. Instead, review of pre-election issues are consolidated with post-election issues that have not been mooted by election results. However, unions will still be permitted to appeal dismissals of election petitions directly to the Board.
Eliminates the practice of scheduling an election no fewer than 25 days after a regional director has issued a "decision and direction of election," which time was held open to allow for a pre-election appeal, now foreclosed.
Restricts special permission to appeal to the Board to only "extraordinary circumstances."
Takes away the automatic right to appeal post-election decisions in stipulated or contested elections and makes review at the Board's discretion.
Makes other technical or conforming amendments to coordinate its existing regulations and statements of procedure with the proposed amendments.

The final rule will not impose similar changes to expedite the NLRB's processing of union decertification election petitions.

Practical Implications

Employers must expect imminent changes to the existing election process (for information about the current election process, see NLRB Union Representation Process Flowchart and Companion Analysis). Most notably:

NLRB hearing officers and regional directors will have greater discretion to limit:
- issues for pre-election hearings; and
- what evidence and briefing will be permitted to address pre-election issues.
Distinctions between consent elections and stipulated elections are for the most part eliminated.
Employers will have less time to express their point of view and educate employees about unions. The time between a petition and an election will be shorter because:
- fewer post hearing briefs will likely be permitted, eliminating the seven (or more) days previously allotted for parties to submit briefs; and
- there will no longer be a pre-election appeal or a 25-day (or more) waiting period between a regional director's decision and the election.

In light of these changes, when responding to a union election petition:

Counsel will need to prepare to argue their cases informally before hearings, especially if attempting to increase the size of the voting group. Employers must establish that a unit other than what is petitioned for has an "overwhelming community of interest" (see Legal Update, NLRB Changes Standard for Determining an Appropriate Bargaining Unit). The employer might try to convince a hearing officer and regional director to receive evidence on that issue, by providing a preview of its case.
Counsel may consider being especially respectful to hearing officers and regional directors since their decisions may be determinative if the Board opts not to hear an appeal.

Employers that are concerned about union organizing should consider progressive human resources policies to ensure satisfactory working conditions that unions could not credibly promise to improve. These policies may include:

Ensuring that managers treat employees fairly.
Providing lines of communications for employees to voice complaints or concerns.
Conducting, and acting on the results of, employee satisfaction surveys.
Providing competitive salaries and benefits.
Auditing policies and procedures to ensure compliance with labor and employment laws.
Even before a union starts an organizing drive, considering:
- preparing lawful opinions about unions to be used in a campaign; and
- expressing the company's opinion about unions in advance of union organizing.

Whether concerned or not about union organizing, counsel should also prepare managers and supervisors to:

Respond lawfully to increased union organization.
Compile materials required by counsel to present the employer's position at the NLRB.

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