Employment Law Report
NLRB Issues Final Changes to its Union Representation Election Rules
On December 21, 2011, the NLRB announced that it was issuing its new amendments to the Board’s representation rules meant to speed up and streamline the union representation election process. It will become effective April 30, 2012. In summary, the changes as set out in the Board’s press release are:
- Amend § 102.64 to expressly construe Section 9(c) of the Act and to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists.
- Amend § 102.66(a) and eliminate § 101.20(c) (along with all of Part 101, Subpart C) to ensure that hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation.
- Amend § 102.66(d) to afford hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the subjects to be addressed and the time for filing.
- Amend §§ 102.67 and 102.69 to eliminate the parties’ right to file a pre–election request for review of a regional director’s decision and direction of election, and instead to defer all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings.
- Eliminate the recommendation in § 101.21(d) (as stated, along with all of Part 101, Subpart C) 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.
- Amend § 102.65 to make explicit and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.
- Amend §§ 102.62(b) and 102.69 to create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and to provide that Board review of regional directors’ resolution of such disputes is discretionary.
- Eliminate part 101, subpart C of Board regulations, which is redundant.
- The remainder of the amendments merely conform other sections of the Board’s Rules and Regulations to the eight amendments described above.
Member Hayes on November 30, 2011 dissented to the issuance of the amendments to the rules. Thus, only two Members of the normally Five-Member Board have made changes of substance in its regulations that in one instance effectively overrules prior Board precedent.
For more details see: http://www.nlrb.gov/news/board-adopts-amendments-election-case-procedures