NLRB Issues Final Rule Amending its Union Election Process | Practical Law

NLRB Issues Final Rule Amending its Union Election Process | Practical Law

The National Labor Relations Board (NLRB) issued a final rule amending its Rules and Regulations and Statements of Procedures regarding union elections under the National Labor Relations Act (NLRA). These amendments take effect April 30, 2012.

NLRB Issues Final Rule Amending its Union Election Process

Practical Law Legal Update 4-517-0194 (Approx. 7 pages)

NLRB Issues Final Rule Amending its Union Election Process

by PLC Labor & Employment
Published on 22 Dec 2011 • USA (National/Federal)
The National Labor Relations Board (NLRB) issued a final rule amending its Rules and Regulations and Statements of Procedures regarding union elections under the National Labor Relations Act (NLRA). These amendments take effect April 30, 2012.
On December 21, 2011, the two member majority of the three member panel (Board) in charge of setting the NLRB's election procedures issued a final rule amending union election procedures set out in its Rules and Regulations and Statements of Procedures. These amendments, which will take effect April 30, 2012, adopt several changes outlined in the Board's June 22, 2011 notice of proposed rulemaking (Proposed Rule) (see Legal Update, NLRB Announces Vote on the Proposed Changes to the Election Rules). The NLRB published a comparison, highlighting the amendments to the election process. In particular, the amendments:
  • Give NLRB hearing officers:
    • the authority to limit presentation of evidence in pre-election hearings to matters relevant to whether an election should be held; and
    • discretion to decide whether or not to permit post-hearing briefs, including setting subject matter and timing.
    (29 C.F.R. § 102.66(a) and (d).)
  • Eliminate:
    • pre-election appeals to the Board challenging regional director determinations, including decisions on voter eligibility issues. Pre-election review will be consolidated with post-election issues that have not been mooted by election results (29 C.F.R. §§ 102.67 and 102.69);
    • the NLRB 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, which will now be foreclosed (29 C.F.R. § 102.21(d));
    • parties' automatic rights to appeal post-election decisions in stipulated or contested elections to the Board, instead making Board review discretionary (29 C.F.R. §§ 102.62(b) and 102.69); and
    • part 101, subpart C from the Statements of Procedure as redundant.
  • Restrict special permission to appeal to the Board to only "extraordinary circumstances" (29 C.F.R. § 102.65 (c)).
  • While a motion for reconsideration or to reopen the record from hearings to determine specific employees' eligibility to vote or to introduce newly discovered evidence (see Legal Update, NLRB Clarifies Standard for Allowing Newly Discovered Evidence) is pending, give NLRB election agents discretion to allow:
    • disputed employees, who are excluded from the voting roster in the regional director's Direction of Election to vote subject to challenge; and
    • the moving party to challenge the ballots of the disputed employees even when the employees are included on the voting roster in the regional director's Direction of Election.
    (29 C.F.R. § 102.65(d)(3).)
  • Provide that the parties may participate in a pre-election conference where they may check the voter list and try to resolve eligibility and bargaining unit inclusion disputes (29 C.F.R. § 102.69 (a)).
  • State the purpose of the NLRB investigating union petitions for elections under Section 9(c) of the NLRA is to determine if a question of representation exists and not whether individuals should be:
    • eligible to vote; or
    • included in bargaining unit found appropriate for an election.
    (29 C.F.R. § 102.64 (a).)
  • Conform other sections of the NLRB's Rules and Regulations and Statements of Procedure to these above-bulleted amendments, including amending Title 29 Section 102.63 of the Code of Federal Regulations to state that an election should reflect the free choice of employees in an, rather than the appropriate unit.
The final rule did not include some of the Board's most controversial proposals included in the Proposed Rule, such as:
  • Requirements for an employer position statement.
  • Scheduling of the pre-election hearing.
  • Content, and timing for delivery, of voter eligibility lists.
  • Electronic filing requirements.
The final rule was approved by a two-member majority of the Board. Member Hayes did not vote on the final rule and is expected to write a dissent from it in the coming months. Member Hayes has publicly disapproved of, among other things:
  • The Proposed Rule.
  • The Board majority's plan to adopt portions of the Proposed Rule:
    • without three Board members voting in the affirmative; and
    • swiftly before Member Becker's term expired because the Board would then lose the quorum necessary to act.
(See Legal Update, NLRB To Change Union Election Rules Before Year's End.)
The amendments are already being challenged. The US Chamber of Commerce and the Coalition for a Democratic Workplace filed a complaint attempting to block enforcement of the rule on December 20, 2011.
In addition, Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions Committee, stated that he would use the Congressional Review Act to challenge the final rule.
The final rule does not impose similar changes to expedite the NLRB's processing of union decertification election petitions.

Practical Implications

Employers should prepare for 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.
  • 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.
  • It will be more difficult for employers to challenge voter lists and bargaining unit determinations in light of:
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.
In preparation for an election, an employer will need to prepare to:
  • Discuss voter lists with union representatives at a pre-election conference and try to resolve eligibility and bargaining unit inclusion disputes.
  • Encourage employees whom it thinks should be eligible to vote, but are excluded from an NLRB Direction of Election voting roster, to vote.
  • Convince the NLRB election agent to allow employees, whom it believes should be eligible to vote but are excluded from an NLRB Direction of Election voting roster, to cast ballots.
  • Convince the NLRB election agent to preclude employees, whom the union believes should be eligible to vote but are excluded from an NLRB Direction of Election voting roster, from casting ballots.
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 employer'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.
  • Immediately report to counsel receipt of an NLRB election petition.
  • Promptly compile materials required by counsel to present the employer's position at the NLRB.