Employment Law Report

NLRB Announces Proposed Changes To Its Representation Election Procedures Intended to Speed Up the Process

June 22, 2011 | Wyatt Employment Team

By Edwin S. Hopson

On June 21, 2011, the National Labor Relations Board, with Member Hayes dissenting, proposed changes in its representation election procedures. The stated purpose is “to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.”

The Board majority points out that it has periodically reviewed and frequently revised its procedures in representation cases over the years since the National Labor Relations Act was enacted into law in 1935. For many decades, the NLRB’s General Counsel has had formal time targets for many facets of the representation election process. These proposed regulations would supplant the previous guidelines.

The NLRB’s press statement contained a chart showing the current practice/rule and the proposed changes. The major proposed changes are:

Current procedures	Proposed procedures
Parties or the Board cannot electronically file or transmit important representation case documents, including election petitions.	Election petitions, election notices, and voter lists could be transmitted electronically. NLRB regional offices could deliver notices and documents electronically rather than by mail, and could directly notify employees by email, when addresses are available.
The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region.	The Regional Director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.)
In contrast to federal court rules, the Board’s current procedures have no mechanism for quickly identifying what issues are in dispute to avoid wasteful litigation and encourage agreements.	The parties would be required to state their positions no later than the start of the hearing, before any other evidence is accepted. The proposed amendments would ensure that hearings are limited to resolving genuine disputes.
Encourages pre-election litigation over voter-eligibility issues that need not be resolved in order to determine if an election is necessary and that may not affect the outcome of the election and thus ultimately may not need to be resolved.	The parties could choose not to raise such issues at the pre-election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20 per cent of the bargaining unit would be deferred until after the election.
A list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election.	The non-petitioning party would produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing.
The parties may request Board review of the Regional Director’s pre-election rulings before the election, and they waive their right to seek review if they do not do so.	The parties would be permitted to seek review of all Regional Director rulings through a single, post-election request.
Elections routinely are delayed 25-30 days to allow parties to seek Board review of Regional Director rulings even though such requests are rarely filed, even more rarely granted, and almost never result in a stay of the election.	The pre-election request for review would be eliminated, along with the unnecessary delay.
The Board itself is required to decide most post-election disputes.	The Board would have discretion to deny review of post-election rulings — the same discretion now exercised concerning pre-election rulings — permitting career Regional Directors to make prompt and final decision in most cases.
The final voter list available to all parties contains only names and home addresses, which does not permit all parties to utilize modern technology to communicate with voters.	Phone numbers and email addresses (when available) would be included on the final voter list.
Deadlines are based on outdated technology, for example, allowing seven days after the direction of election for the employer to prepare and file a paper list of eligible voters.	The final voter list would be produced in electronic form when possible, and the deadline would be shortened to two work days.
Representation case procedures are described in three different parts of the regulations, leading to redundancy and potential confusion.	Representation case procedures are consolidated into a single part of the regulations.

Thus, the time for which an employer to conduct a communication campaign in response to a union’s representation petition would be substantially reduced and in some cases perhaps cut in half. Some critics will argue that the current Board is attempting to implement features from the Employee Free Choice Act (EFCA) which failed to win passage. In his dissent, Member Hayes questions the need for the proposed changes and points to the following statistics:

“The Board’s total representation case intake for Fiscal Year 2010 (including all categories of election petitions) was 3,204, a 10 percent increase from the Fiscal Year 2009 intake of 2,912. For all petitions filed, the average time to an election was 31 days. Voluntary election agreements were obtained in 92 percent of the merit petitions. In contested cases, Regional Directors issued 185 pre-election decisions after hearing in a median of 37 days, well below the target median of 45 days. In 56 cases, post-election objections and/or challenges were filed that required an investigative hearing. Decisions or Supplemental Reports issued in those cases after hearing in 70 median days from the election or the filing of objections. In 32 cases, post-election objections and/or challenges could be resolved without a hearing. Decisions or Supplemental Reports in those cases issued in 22 median days. The General Counsel’s goal in hearing cases is median days and 32 days in non-hearing cases.”

In addition, with the requirement that litigation of eligibility issues raised by the parties involving less than 20% of the bargaining unit be deferred to the post-election challenge process, unions may claim front line supervisors should be included in the unit which could prevent the employer from utilizing them in the campaign to communicate its own position to the employees they supervise unless they were clearly supervisors as defined in Section 2(11) of the Act.

Public comment on the proposed changes are to be submitted within 60 days of the June 22, 2011, publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14^th Street NW, Washington DC 20570. Reply comments to the initial comments may be filed during an additional 14 day period. In addition, there will be a public hearing on the proposed changes on July 18 and July 19, if necessary.