One of the NLRB's primary responsibilities is to hold secret ballot elections so that employees can decide whether they wish to be represented by a labor union or, if already represented, to remove the union or replace it with another.
The Board recently voted to change some election procedures in order to reduce unnecessary litigation, adopting parts of a broader proposal to modernize and streamline the election process. The changes, effective on April 30, 2012, are described below.
1. Defining the Scope of the Pre-Election Hearing. Most parties to NLRB elections agree to the election terms. When they can’t agree, the NLRB conducts a pre-election hearing to determine whether an election should be held. This amendment alters Section 102.64 of the Rules to explicitly state that the purpose of the hearing is to determine whether a question of representation exists, and amends Section 102.66(a) to give the hearing officer the discretion to limit the hearing to relevant matters. Currently, questions concerning a small number of employees may be litigated at great length and expense despite having no effect on the final result, because the disputed individuals’ eligibility to vote only becomes an issue if their votes would have made a difference in the final outcome of the election.
2. Limiting Post-Hearing Briefs. The second amendment alters Section 102.66(d) of the Rules to give hearing officers the discretion to control the filing, subject matter, and timing of any post-hearing briefs. This amendment was adopted because most cases involve only routine issues based on well-known principles of NLRA law. Briefing adds little to the decision-making process, but introduces further delay and adds significantly to the parties’ litigation expenses.
3. Consolidating Pre- and Post-Election Appeals. The third amendment alters Sections 102.67 and 102.69 to eliminate the need to file multiple appeals. Currently, parties must file one appeal to seek Board review of pre-election issues and a separate appeal to seek Board review of post-election issues, such as challenges to voter eligibility and objections to a party’s conduct during the course of the election. This amendment consolidates the two appeals into a single post-election procedure, which saves the parties from having to file and brief appeals that may become moot based on the outcome of the election. This change also conforms NLRB procedures with the ordinary rules found in both state and federal courts which limit interlocutory appeals.
4. Eliminating the 25-Day Waiting Period. The fourth amendment follows directly from the third by removing the 25-day waiting period after a regional director’s pre-election decision issues. Under the current rules, Section 101.21(d) recommends that the regional director refrain from setting an election date sooner than 25 days after ordering an election to allow the Board sufficient time to consider any requests for review. Because the new rules eliminate pre-election appeals, the waiting period no longer serves any purpose.
5. Establishing a Standard for Interlocutory Appeals. The fifth amendment also takes aim at the problem of multiple appeals to the Board in a single case . The current rules fail to establish any standard for the filing of interlocutory appeals concerning individual rulings by hearing officers or regional directors during the course of a pre-election hearing. As a result, parties may, and have, filed numerous appeals in a single case regarding discrete rulings as to what evidence may, or may not, be permitted. By altering Section 102.65(c), the new rules make clear that the Board will grant such interlocutory appeals only under "extraordinary circumstances where it appears that the issue will otherwise evade review."
6. Establishing Standards for Post-Election Procedures. The amendment to Sections 102.62(b) and 102.69 codifies a long-established practice in which regional directors decide challenges and objections to elections through an investigation without a hearing when there are no substantial or material factual issues in dispute. The amendment also makes Board review of the regional directors’ decisions discretionary. This change will require parties to identify significant prejudicial error by the regional director or some other compelling reason for Board review, allowing the Board to devote its limited time to cases where its review is warranted.
In its original notice of proposed rulemaking, the NLRB proposed many other amendments as part of a broader modernization of the election process. These amendments, among other things, would have standardized deadlines across the country and allowed for the electronic filing of petitions. The Board set those portions of the proposal aside for possible future consideration.