The National Labor Relations Board issued new quick election rules that went into effect April 30. On April 26, 2012, the Board’s acting general counsel issued a guidance memorandum with significant direction on the implementation of these new rules.
The Board issued notice of the new quick election rules in June of 2011. Following a comment period and hearings, and facing the potential loss of a quorum upon the expiration of member Becker’s term at the end of 2011, the Board approved scaled-back rule changes on November 30, and published the rule on Dec. 11, 2011. The rules became effective on April 30 and apply only to petitions filed on or after that date. The new quick election rules are being challenged in federal court in Washington, D.C. The judge in that case has announced that a decision will be issued by May 15.
The rule changes increase the power and discretion of the regional directors and eliminate important procedural safeguards that protect the election process. Most significantly, the new rules:
- Authorize hearing officers presiding over pre-election hearings to limit the evidence on issues of supervisory status or other issues of voter eligibility or inclusion if the hearing officers do not believe that such issues are “relevant to the existence of a question concerning representation.”
- Allow post-hearing briefs only in certain cases and at the discretion of the hearing officers.
- Eliminate the right to seek pre-election review by the Board. Almost all appeals, including appeals related to election conduct, will be consolidated into a single appeal after the election is conducted.
- Eliminate the waiting period to conduct elections when a party has filed a request for review and require “special permission” for pre-election review based only on “extraordinary circumstances.”
- Make Board review of any remaining post-election disputes discretionary and enable the Board to reject any appeal that does not “present a serious issue for review.”
The new rules make for a greatly reduced time period from petition to election and threaten to eliminate the effectiveness of supervisors in union elections by allowing unions to include them in a proposed bargaining unit without leaving an effective method for the employer to challenge their inclusion.
On April 26, 2012, the Board’s acting general counsel issued a guidance memorandum to the regional offices on implementation of the new rules. The guidance memorandum states that “it does not set forth new time goals for the issuance of decisions or the conduct of elections.” However, the procedures outlined in the guidance memorandum will result in faster elections.
Under the new procedures, regional offices must schedule pre-election hearings for five business days after the filing of a petition and may grant postponements only in limited circumstances.
The guidance memorandum instructs hearing officers to limit pre-election hearing evidence to the existence of a “question concerning representation,” as defined by the new rules. Issues that may be considered at the pre-election hearing include jurisdiction, labor organization status, election bars and whether there is an appropriate unit for an election. Evidence concerning individual eligibility and inclusion issues (e.g., supervisory status, boundaries of the unit description) must be excluded, unless such issues collectively would impact more than 10 percent of the unit.
The guidance memorandum also permits a union to waive its right to have voter addresses (the Excelsior list) for 10 days, permitting elections before that 10-day period has run.
As a result of the new rules and the guidance memorandum, elections could be held in as little as 21 days after the filing of a petition — significantly faster than current practice.
The full impact of the new rules and the guidance memorandum will depend on the outcome of the pending litigation. However, unless and until a court places the rules on hold, employers must be ready for the possibility of an “ambush” election that would afford an employer no meaningful time to share information about the disadvantages of unionization or the track record of the union. Employers must be more proactive than ever in responding to the threat of unionization — an employer who waits until after it receives a representation petition will have little opportunity to reverse the union’s momentum on such short notice of an election.