NLRB Publishes New Election Rules

The National Labor Relations Board (“NLRB” or “Board”) acted quickly to pass new election rules, which will take effect April 30, 2012. Please remember: just because you aren’t a union shop, doesn’t mean you should ignore this information.

With only days left in the term of NLRB Member Craig Becker, and just a few days before the Christmas holiday, the Board announced that it adopted final rules that will significantly expedite the processing of election petitions filed by unions. The new rules will:

  1. Provide an NLRB hearing officer with the ability to limit the evidence that can be introduced at a representation case hearing.
  2. Provide the hearing officer with the authority to deny a party the right to file a post-hearing brief.
  3. Eliminate a party’s right to have the NLRB review a decision by a regional director that directs an election.
  4. Eliminate current language that requires an election to be conducted within 25-30 days, thereby permitting elections to be held before the 25-day period.
  5. Eliminate a party’s right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes.The new rules will reduce the time for processing representation cases that require a hearing by approximately 14 days, which means that elections will be held in roughly the same time as if the parties had stipulated to an election.

Apparently many unions, and even NLRB personnel, claim that employers have abused the current election process by litigating issues merely to delay an election. In their view, many employers, rather than resolving the election issues such as eligibility of the voters and stipulating to the election, often litigate minor issues simply to gain additional time to counter the union’s organizing efforts.

In addition to having a quicker election, the new rules will limit an employer’s ability to raise issues and, as a consequence, may inhibit the ability to preserve them for judicial review. Although the implementing guidance has not been announced, the new rules give NLRB regional directors and hearing officers significant discretion in determining the issues that can be raised in pre-election hearings. They also give the Board more discretion in deciding what cases to review on appeal.

Although the new rules will not become effective until April 30, 2012, the National Chamber Litigation Center, in conjunction with the Coalition for a Democratic Workplace, filed a lawsuit seeking to enjoin the implementation of the rules. Even with the legal challenges, it is important for you to review your policies and strategies regarding resisting union organizing with the new rules in mind.