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Labor Board Announces Changes to Union Election Procedures

The National Labor Relations Board has announced a final rule, which will adopt various changes to its procedures for processing union representation cases.  The Board’s new procedures are currently scheduled to take effect on April 30, 2012.

The Board has admitted that it is pushing through the new rule now, prior to the expiration of Board Member Craig Becker’s term on or before January 3, 2012.  Upon the expiration of Mr. Becker’s term, the Board will be down to only two members, and at that point the Board will lack the authority to issue new rules such as this, or decide pending cases.

The new procedures can be traced directly back to June 21, 2011, when the Board proposed numerous changes to its casehandling procedures for representation cases.  The Board has been criticized by the business community for pursuing these changes, which are viewed as pro-union.  The criticism has focused on the fact that the proposed changes are all geared toward significantly shortening the period between the union’s filing of the petition with the NLRB and the actual election – a time period during which the employees have the opportunity to learn all of the implications of unionization. 

The changes that are now scheduled go into effect on April 30 include some (but not all) of the changes that were proposed this past June, including various changes that will shorten the timeline between the filing of the petition and the actual election – at least in some cases.  The Board has not, however, dropped the remaining changes that were originally proposed.  The Board is merely postponing action on the remainder of the proposed changes.

All of the changes that have been adopted are significant, even if some of them involve nuanced components within the Agency’s casehandling process.  Three of the adopted changes are particularly noteworthy:

  1. Under current procedures, the vast majority of pre-election hearings are held because the union and the employer have not been able to agree upon the appropriate bargaining unit (i.e., the list of job classifications that comprise the eligible voters).  Of course, it only makes sense that the parties (including the voters themselves) should be aware of who is eligible to vote in order to manage the election process and conduct the election.  Under the new rules, the NLRB Regional Office will be able and can be expected to limit pre-election hearings over bargaining unit issues to those cases in which there are disputes over sizable numbers of employees.  Absent such circumstances, the Regional Office will conduct the election (albeit in a manner that segregates ballots), even though there has been no agreement or determination regarding who is eligible to vote.

  2. Under current procedures, the Regional Director’s decision as to the appropriate bargaining unit may be appealed (through a “request for review”) to the Board in Washington, D.C., prior to the election.  Under the new rules, there will no right to file a request for review until after the election is held.  Thus, even in those cases where there has been a pre-election hearing to determine the appropriate bargaining unit, the Regional Office will conduct the election before the Board itself weighs-in on the issue.  Again, elections will need to be conducted with segregated ballots.  Without knowing who is eligible to vote, in many cases, it will not be possible to determine the outcome of the election at the conclusion of the vote.

  3. Under current procedures, upon issuing a decision and direction of election (in a case where there was no election agreement), the Regional Director schedules the election between the 25th day and the 30th day thereafter.  Under the new rules, the normal minimum 25-day period is being eliminated.  Thus, even before determining who is eligible to vote, the Regional Office will schedule the election, and presumably the election date will be set for as soon as possible after the decision is issued, based upon when the Regional Office intends to issue its decision.  The Board has, in fact, gone on record to specifically state that this change is designed to shorten the period leading up to the election.

It is notable that the changes identified above only apply in those cases in which the parties are unable to reach an agreement on the terms for the election (including the definition of the bargaining unit and the various election details).  Indeed, according to the Board’s press release, the adopted changes are “primarily focused on procedures followed by the NLRB in the minority of cases in which parties can’t agree on issues such as whether the employees covered by the election petition are an appropriate voting group.” 

Thus, while it is plain that the Board has adopted these changes with the specific aim of shortening the pre-election period in those cases in which there are disputes, the Board at this time is not overtly changing the election procedures in cases where the parties are able to successfully negotiate an election agreement.  For the time being at least, the Agency does not appear to be modifying its current internal directive that, in cases where there is an election agreement, the election needs to be held no later than the forty-second day after the filing of the petition.

Be that as it may, as noted above, the Board on June 21 proposed numerous other changes to the election procedures, which are being held for further consideration.  Those proposed changes, if adopted, would shorten the pre-election period to a fraction of 42 days, even in cases where there is an election agreement.  Moreover, it is not uncommon for there to be legitimate disputes between parties that stand in the way of an election agreement, and in those cases, the changes that have been adopted by the Board are significant, and they are plainly favorable to unions. 

Finally, it should be noted that legal challenges to the Board’s adoption of the new procedures have already been filed. 

The final rule regarding the new procedures has been published in the Federal Register, which is available here, and the NLRB has an updated web page devoted to this topic, which is available here. 

We will naturally keep you updated on any significant developments regarding the Board’s implementation of new casehandling procedures in representation cases.  In the meantime, if you have any questions, feel free to contact Tom Trachsel or your regular Felhaber attorney.

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