In a 2-1 party-line vote, the National Labor Relations Board (the “Board”) adopted a resolution on November 30, 2011 that approved a series of changes to its Rules that will limit the ability of parties (generally employers) to challenge union election proceedings and which may shorten the time period for a union election.  Under the National Labor Relations Act, a union typically becomes certified (or decertified) as the bargaining representative for a group of employees pursuant to a Board supervised election.  The process starts with the filing of a petition.  If the parties do not enter an election agreement, a hearing is scheduled for the purpose of resolving questions related to the petition – e.g., whether the unit sought is appropriate, who is eligible to vote, etc.
The resolution approved by the Board requires amendment of its Rules for the stated purpose of “reducing unnecessary litigation.”  In reality, the amendments serve to reduce the due process afforded to employers and employees faced with a certification petition.  The changes include the following:

  • Hearing Officers will be empowered to restrict the issues raised at the hearing to those the Hearing Officer believes are “relevant to the question of whether an election should be held.”
  • Parties will no longer have the right to automatically submit post-hearing briefs.  Rather, Hearing Officers will be empowered to determine whether to allow post-hearing briefs.
  • Parties will no longer be allowed to bring pre-election appeals.  Rather, pre-election issues must be consolidated with any challenges to conduct during the election in one post-election procedure.
  • The grounds upon which the Board may grant a request for a special appeal will be narrowed to include only those circumstances that are deemed “extraordinary” by the Board.
  • The Board will have the discretion to refuse to review post-election disputes concerning the conduct of the election.
  • The time to conduct an election may be shortened as Regional Directors will have the authority to direct an election to occur much sooner than the current 25-30 days after a Regional Director issues an order directing an election.

These changes will harm the interests of employers and employees by limiting their ability to receive a fair hearing of their petition-related concerns.  For example, questions concerning who is eligible to vote in the election will no longer be decided prior to a vote.  By limiting the issues parties can raise, and consequently the evidence submitted, Hearing Officers will be able to filter what is in the hearing record and thereby reduce an employer’s chances of succeeding in an appeal.  Similarly, by eliminating the right to submit post-hearing briefs, the revised Rules may limit the parties’ ability to review the record evidence and submit thoughtful and well researched legal arguments in support of their positions.  By limiting the record and the right to submit briefs, the rights of employers and employees will be diminished.  A reduced record will also make it easier for the Board to utilize its “discretion” to refuse consideration of an employer’s appeal.  Finally, by eliminating pre-election appeals, the changes will likely have a negative effect in that employees may cast ballots believing that they are voting to certify a unit that may ultimately be deemed inappropriate.  Moreover, by limiting the scope of issues presented, an employee who should not properly be included in the unit – e.g., a well-respected or feared supervisor – may be allowed to vote in an election, a circumstance that could distort the free-will choice of some employees.
It is not entirely clear when these changes will be finalized and become effective.  The resolution adopted on November 30th requires the Board to draft and formally approve by separate vote the final amendments to its Rules.  Undoubtedly, the Board’s two-member majority would prefer to finalize the changes to the Rules before Board member Craig Becker leaves the Board at the end of December, with the Rules taking effect shortly thereafter.
Takeaway for Employers:  The practical implication of these changes is that employers will have less time and ability to effectively respond to or challenge a union election petition.  Given that, employers should review their practices and policies to ensure that they are in the best position to detect a union organizing campaign at an early stage and adequately respond to any union propaganda.   Further, employers should also take steps to make certain that supervisory staff are properly trained and prepared to deal with these issues.