On April 30, 2012, new National Labor Relations Board (NLRB) election procedures came into effect, with the primary aim of making union elections in the private sector faster and less prone to bureaucratic delay.
The major changes include:
1. Defining the Scope of the Pre-Election Hearing: Most parties to NLRB elections agree to the election terms. When they don’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 significantly adds 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 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 file, and have in the past, 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 clearly states 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 materially 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 sum, these changes made it much harder for either party, but particularly the employer, to delay an election once a petition has been filed. The rules eliminate pre-hearing objections, expand a hearing officer’s ability to narrow the scope of a hearing and to limit briefing the issues, and eliminate long waiting periods after the regional directors pre-election decision. The ability to request full Board review of an election case had been greatly curtailed. While there could be some downside for unions who face objectionable conduct during an election, overall these procedures would provide a faster and more streamlined process for getting an election held once a petition is filed. As employers would have less time to wear down employee union support, these rules could have lead to more successful organizing drives.
On May 14, 2012, however, U.S. District Judge James Boasberg struck down the NLRB’s rule, holding that the lack of a three-member quorum rendered the rule invalid. The court rejected the NLRB’s argument that Member Hayes could be counted toward the statutorily required quorum because he held office when the rule was approved and had participated in earlier discussions relating to the rule. Citing Woody Allen’s line that “eighty percent of life is just showing up,” Judge Boasberg held that showing up is the only thing that matters when it comes to satisfying a quorum requirement. Because Member Hayes did not participate in the rulemaking vote, no quorum was established.
In response to the court’s ruling, the NLRB announced that it temporarily suspended implementing changes in its election procedures. Further, on May 15, 2012, Acting General Counsel Lafe Solomon rescinded his earlier guidance to NLRB regional offices on implementing the new representation case procedures, and advised regional directors to revert to their prior practices in processing election petitions. The Board is likely to appeal the decision, so the final status of these rules is still in question. NATCA LR will continue to advise the Organizing Committee and our members of the changes to NLRB election rules as they develop.