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NLRB's New Rules for Processing Union Elections

June 12, 2012

By: Willig, Williams & Davidson
Published in The Legal Intelligencer

On April 30, the National Labor Relations Board's amended regulations for processing union elections went into effect. The rules, which generated significant controversy as well as a lawsuit, were designed to increase efficiency, eliminate unnecessary delay and prevent parties from abusing the election process.

The rules were struck down on procedural grounds on May 14 by U.S. District Judge James E. Boasberg of the District of Columbia. Boasberg held that the rules had not been properly promulgated because of the lack of a proper quorum of board members in Chamber of Commerce v. Nat'l Labor Relations Bd., No. 11-2262, 2012 LEXIS 66626 (D.C. Cir. May 14, 2012).

The court itself recognized that the board could merely revote the rules with a properly constituted quorum. The board could also appeal the decision, and if victorious (or if it properly votes the rules), the new rules will simply reissue. The rules are thus still relevant and worth reviewing, as they will likely either be reissued with a full quorum, or the NLRB may be successful if it chooses to appeal the decision.

Under the National Labor Relations Act, a union can become the representative of the employees of an employer either through voluntary recognition, or through an election conducted by the NLRB at one of its regional offices. The first step in obtaining an election is the filing of a representation petition with the board.

If the parties cannot agree about which employees can vote in the election or whether an election should be held, the board (through the auspices of regional directors), automatically schedules a hearing to determine if there is a question concerning representation (QCR). More than 90 percent of the time, the parties stipulate to the particulars of the election. If the parties cannot agree, then a hearing to resolve these issues is held. After the hearing, the regional director will issue a decision, and if an election is to be held, direct an election (commonly referred to as a DDE).

The election rule amendments modify the election process by narrowing the issues that can be litigated at pre-election hearings, giving hearing officers more control over the hearing itself, eliminating multiple appeals by consolidating pre-and post-election appeals and making board review of post-election decisions at the regional level discretionary, thereby eliminating a rule providing that the union election should be set no sooner than 25 days after the decision and direction of election.

Pre-Election Hearing Issues
Under the proposed rules, pre-election hearings are to be set for five working days after the notice of hearing issues (usually within a day of the filing of the petition). Continuances will not be granted without "extraordinary circumstances" for a time period more than 14 days after the filing of the petition.

The regulations clarify that the purpose of a pre-election hearing is to determine if a QCR exists. Thus, the only issues normally to be litigated will be whether the election petition seeks an appropriate bargaining unit, and whether there is a statutory or other bar to the election, such as jurisdiction, labor organization status, contract bar or election bar.

In perhaps the most controversial rule, disputes about the eligibility of individuals to vote in the election, or whether they should be included in an appropriate unit, will ordinarily not be litigated or resolved before the election if the individuals in dispute constitute less than 10 percent of the bargaining unit. This means that in some cases the supervisory status of individuals will not be resolved until after the election.

Employers claim that supervisory issues need to be resolved before the election so that they can use supervisors as part of their campaign against the union. By deferring resolution of the supervisory status of certain individuals until after the election, employers argue that they will be deprived of the ability to use those individuals as part of their campaigns, or run the risk of committing unfair labor practices.

The Hearing
The amendments give hearing officers more discretion to limit the presentation of evidence to that which supports a party's contentions and which is relevant to a QCR, or whether there is a legal bar to an election. Presumptions will be relied upon more heavily by the hearing officers.

The parties will normally be asked when the hearing commences to take a position on the issues to be decided by the regional director. If a party does not take a position on an issue that involves a presumption, it will be precluded from putting on evidence regarding the issue. The hearing officer may require an offer of proof from a party that opposes a presumptively appropriate unit.

The hearing officer will also have more discretion regarding the filing and content of post-hearing briefs. In the vast majority of cases, the legal issues are settled and there is thus no real need to file briefs. Briefs will be filed only with permission of the hearing officer and will ordinarily be permitted only if there are complex or significant factual and legal issues, or when case law is unsettled. The hearing officer will also have the discretion to decide when briefs must be filed. Parties will be allowed to file pre-hearing briefs and will also be permitted to close orally at the end of the hearing.

Appeals of pre-election hearing officer or regional director decisions will be consolidated with post-election appeals. Under the current rules, a party must file one appeal to seek review of pre-election matters and another to seek review of post-election issues, resulting in multiple appeals. Under the new rules, interlocutory appeals will only be allowed if there are "extraordinary circumstances where it appears that the issue will otherwise evade review."

Timing of Election
After the hearing, the regional director issues his or her DDE. The current rules provide that parties can appeal pre-election hearing officer or regional director decisions to the NLRB. Because of that, the previous rule was that the regional director could not schedule an election sooner than 25 days after the DDE, to give the board time to review the appeal.

Under the new rules, NLRB review of regional director decisions will be discretionary. There will therefore be no need to wait 25 days to schedule an election until the board can make a decision; consequently, elections will be set more quickly.

Post-Election Issues
Post-election objections must be filed within seven days of the counting of the ballots, and requests for review of pre-election decisions must be filed within 14 days of the DDE. Exceptions to the hearing officer's report will now go to the regional director instead of the board for resolution.

Future of the Rules
The net effect of the new rules is that elections would take place on a slightly quicker timeline than before, as there would be less of an opportunity to delay elections by dragging out hearings, filing interlocutory appeals and obstructing the process. Currently, the average time to an election from the filing of a petition is 58 days, with a median of 38 days. It is unclear how quickly elections would take place under the new rules, with estimates ranging from 14 to 30 days.

From the perspective of labor, the rules are a small step in the right direction, but are hardly earth-shattering revisions to the election procedures — instead, the rules are minor, if welcome, changes within the existing framework.

Employers complained that the new rules would strip them of their right to effectively campaign against unions by shortening their time to campaign, and would also deprive them of their right to a fair hearing due to the limitations on the introduction of evidence and filing of briefs.

The board has not indicated whether it will appeal the decision, or whether it will reissue the rules with a proper quorum of board members. For now, the board has instructed all of the regional directors to proceed using the old rules. One thing is certain: If and when the rules issue again, they will be subject to a fierce challenge from employer groups.

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