Employment Law Report

NLRB Chairman Releases Draft Resolution on Election Changes to be Voted on on November 30

By Edwin S. Hopson

On November 29, 2011, NLRB Chairman Mark Pearce made public a draft resolution to be voted upon by the Board at its November 30, 2011, public meeting. Pearce also made available an explanation of the resolution. See http://www.nlrb.gov/news/board-chairman-releases-details-election-proposal-wednesday-vote.

According to Pearce’s explanation of resolution, the draft resolution contains six procedural amendments which are aimed at reducing litigation before the Board in union representation election cases. They are:

●Provides the hearing officer at the pre-election hearing with the authority to limit the hearing to the fundamental question of whether there is a question concerning representation, thereby eliminating other issues such as whether a particular employee is a supervisor who should be excluded from the unit.

●Requires that permission by the hearing officer must be obtained in order to file post-hearing briefs with the Regional Director.

●Eliminates the right of either party to petition the Board to review any pre-election ruling by the Regional Director.

●Removes language regarding allowing 25 days from the Regional Director’s decision and direction of election to the scheduling of the election (since the right to petition for review has been eliminated).

●Restricts the circumstances under which the parties may seek permission to appeal to the Board prior to the election—that is “[s]uch permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review.”

●Makes discretionary the Board’s review of a Regional Director’s or Administrative Law Judge’s disposition of post-election disputes after both stipulated and directed elections.

Additionally, a portion of existing regulations would be eliminated and replaced with new sections consistent with the proposed changes. The remainder of the proposed changes to election rules remain under consideration.

The Chairman also stated: “The text of the final rule must be finalized, circulated among the members of the Board, and approved by a majority of the Board. No final rule can issue without such approval of the rule itself.”

There is no indication as to what the timing of that would be.