NLRB Issues Final Rule Amending Board Election Procedures

December 23, 2011

On Dec. 22, 2011, the National Labor Relations Board (the “Board”) issued a Final Rule changing the way it processes election petitions. Reduced to their essentials, the changes do four things. They: (1) prohibit employers from raising most challenges as to who can and cannot vote until after the vote takes place; (2) increase the role of regional staff in deciding key election issues such as who can and cannot vote in elections; (3) reduce the ability of employers to appeal election decisions made by regional staff to the full National Labor Relations Board; and (4) make it easier for the Board to rush petitions to a vote thereby limiting the opportunity of voters to get all the information they need to make informed decisions. 

The Board is the agency of the federal government charged with, among other things, conducting elections to determine whether appropriate units of employees want to be represented by unions. Over the course of its 75 year existence, the Board developed very detailed rules and procedures defining standards for deciding who is eligible to vote in these elections as well as when and how elections will be conducted. These rules were made two ways: by decisions of the Board issued in litigated cases; and by rules contained in administrative regulations.

In June 2011, the Board proposed sweeping changes to the administrative regulations addressing election procedures. More than 20 separate changes were proposed by the Board, which claimed that the changes were designed to reduce unnecessary litigation and streamline its election processes.

The effect of these proposed changes was to reduce the time between petitioning the Board for an election and conducting the election from a well-established target of 42 days to as few as 10 days, which would deny voters time they need to gather the information required to make an informed choice. The proposed changes also reduced employer input into who would be allowed to vote and when votes would take place, limited the appeal rights of employers, and required employers to give unions confidential employee information such as personal cell phone numbers and email addresses.

The Board received roughly 65,000 public comments and strong opposition to the June 2011 proposed election rule changes. As a result, the Board trimmed its proposal to the following eight specific changes:

  • Section 102.64 is amended to clarify that the statutory purpose of a pre-election hearing is to determine if a question of representation exists.
  • Section 102.66(a) is amended to ensure that hearing officers presiding over pre-election hearings are authorized to limit the presentation of evidence to that which is relevant to the existence of a question concerning representation.
  • Section 102.66(d) is amended to grant hearing officers presiding over a pre-election hearing discretion to decide whether to permit the filing of post-hearing briefs if it “would be of assistance to the decision-maker,” and to determine the timing of and subjects to be addressed in such briefs.
  • Sections 102.67 and 102.69 are amended to eliminate a party’s right to file a pre-election request for review of a regional director’s decision and direction of election. Instead, a party is now required to defer all requests for Board review until after the election, when any such request can be consolidated and decided at the same time as any post-election requests for review.
  • The Board has eliminated the provision in Section 101.21(d) providing that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review, which is concurrently being eliminated as part of the Board’s election amendments.
  • Section 102.65 is amended to state that a party must establish “extraordinary circumstances where it appears that the issue will otherwise evade review” in order to obtain special permission to appeal the ruling of a hearing officer or regional director to the Board.
  • Sections 102.62(b) and 102.69 are amended to establish a uniform procedure for resolving election objections and potentially outcome-determinative election challenges. Now, parties in both stipulated and directed election cases shall file exceptions to any hearing officer’s report with the regional director, and can subsequently request review of the regional director’s decision and direction of election and post-election matters in a consolidated, post-election request. This amendment also vests the Board with discretion to deny review of post-election disputes when a party’s request raises “no compelling grounds for review,” whereas previously, the Board was required to review such post-election disputes.
  • Part 101, Subpart C of the Board’s Statements of Procedure describing its procedures in representation cases are eliminated as redundant of other portions of the Board’s Rules and Regulations regarding representation proceedings.

The Board approved these changes by a 2-1 vote on Dec. 1, 2011 (Member Brian Hayes the sole Republican Board Member, voted against the proposed amendments). The rule changes are scheduled to go into effect on April 30, 2012.

Though not as broad as the amendments originally proposed by the Board, the regulatory changes as approved have a significant negative impact on the rights of voters. As amended, the new regulations can be used to rush petitions to elections in a matter of days rather than weeks. This shortened election cycle results in depriving voters of the time they need to obtain the facts necessary to make an informed choice regarding union representation.

The new rules also place severe new limitations on an employer’s ability to have meaningful input into many stages of the election process. The changes prohibit employers from raising many legitimate pre-election issues, such as who should be allowed to vote, until after an election is conducted when deciding such issues is too late. They also vest the Board’s regional staff with broad new discretion regarding election procedures, and place new restrictions on an employer’s rights to appeal decisions by regional staff. They further limit the time in which employers have to provide voters with important information about unions that voters need to make an informed choice, information that the unions would prefer the voters did not know.

The other changes originally proposed by the Board in June 2011 that were not adopted as part of the recent amendments remain under consideration.

At least one lawsuit has been filed challenging the new election rules. Additionally, legislative action is being pursued in both houses of Congress to reverse some or all of these changes. Unless these efforts are successful, the new restrictions will become effective on April 30, 2012. Employers should pay close attention to developments related to these rules. We will, of course, keep you up to date as events unfold.