Employment Law Report

NLRB’s New Rules Governing Union Representation Election Procedures Go Into Effect

By Edwin S. Hopson

New rules governing procedures applicable to the processing of representation cases before the National Labor Relations Board went into effect on April 30, 2012.  According to an April 26, 2012, memorandum issued by NLRB Acting General Counsel Lafe Solomon to NLRB field personnel, the new rules “are designed to reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation.” 

The changes are:

1.         §102.64 is amended to expressly construe Section 9(c) of the National Labor Relations Act to state that the statutory purpose of a pre-election hearing is to determine if a “question concerning representation” exists.

2.         §102.66 is amended to clarify that NLRB hearing officers presiding over pre-election hearings have the authority to limit the introduction of evidence to that which supports a party’s contentions and is relevant to the existence of a “question concerning representation.”

3.         §102.66(d) is amended to afford the hearing officer presiding over a pre-election hearing the discretion as to whether or not the filing of post-hearing briefs will be allowed, and, if so, what issues are to be addressed, and the time for filing, all subject to the ultimate authority of the regional director.

4.         §§102.67 and 102.69 are amended to defer most requests for Board review—with the exception of special permission to appeal—until after the election is conducted; any such post-election request can also be consolidated with a request for review of any post-election rulings.

5.         §101.21(d) is amended to eliminate the recommendation (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, since such requests can now only be made after the election is conducted.

6.         §102.65 is amended to clarify and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.

7.         §§102.62(b) and 102.69 are amended 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 a regional director’s resolution of such disputes is discretionary.

Dissenting Member Hayes issued a written statement in which he argued, among other things, that the new rules are contrary to the Act and the constitution as well as contrary to past practice at the Board.  Hayes points out that only two members of a five member board approved the new rules. Chairman Pearce offered a rebuttal in the form of a concurring statement supporting the implementation of the new rules. Chairman Pearce’s and Member Hayes’ statements can be found at: