Wednesday, December 7, 2011

NLRB Votes To Shorten Timelines in Representation Elections

The National Labor Relations Board voted 2-to-1 last week to approve a resolution to proceed with a limited number of amendments to the NLRB election process. The amendments are drawn from a more comprehensive proposal put forward by the Board in June. Chairman Mark Pearce and Member Craig Becker voted in favor of the resolution, while Member Brian Hayes voted against it, during a one-hour public meeting at Board headquarters on Wednesday, Nov. 30. A video recording of the meeting is available on the Board website ( As a result of the vote, a final rule will be drafted containing the proposed six amendments, which seek to reduce "delays" and "unnecessary" (in the words of the NLRB") litigation in the pre-election process. The final rule will be subject to approval of the Board, and if approved, will be published in the Federal Register.

The Board's action is a result of the failure of the Employee Free Choice Act ("EFCA") to pass Congress. In June, the Board submitted a proposal to compress the union representation election process into a shorter time frame. That proposal drew criticism from some in Congress and the business community, who argued that shortening the (what many employers view as an already short) time frame would deprive employers of the ability to effectively communicate their views to employees regarding union representation prior to elections. This, according to the critics, would result in an unbalanced playing field - with unions being able to communicate with employees about the benefits of union representation both pre- and post-petition (i.e., over a lengthy period of time) and employers' communications with employees in this regard being limited to a matter of days or weeks.

Last week, Board Chairman Mark Pearce offered a modified version of new regulations without some of the most controversial portions. The cumulative effect of these provisions is to shorten the time before a representation election is conducted following the filing of an election petition by a union seeking to represent a group of employees. As relevant here, the Resolution provides as follows:
• Appeals to the Board pertaining to both pre-election and post-election issues are consolidating into one post-election "request for review," resulting in a shortened period from petition filing to election.
• By eliminating the possibility of appealing pre-election matters, the time between the filing of an NLRB election petition and an election will be significantly reduced.
• The NLRB Hearing Officer will determine whether post-election hearing briefing is necessary.
• The Hearing Officer may reject an attempt by the parties to fully litigate issues not deemed to be related to a "Question Concerning Representation" ("QCR"). Although the Board has not yet defined that term for purposes of the rule, there are indications that the majority does not consider determination of an individual's supervisory status to be relevant to the determination of a QCR. That often crucial initial question for employers would be put off until after the election, where long and drawn out hearings could defeat the majority's articulated quest for speedy resolution.

The portions "left for future consideration" from the original proposal are:
• Electronic filing of election petitions;
• Mandatory scheduling of hearings seven days after the notice of hearing is served;
• Filing of position statements by the parties;
• Inclusion of telephone numbers and e-mail addresses on the Excelsior voting list; and
• Reducing an employer's time to file an Excelsior voting list from seven to two working days.

The Resolution must still go through formal drafting procedures and a final vote followed by review by the Office of Management and Budget. However, since Member Becker's appointment expires at the end of the year and the Board will be unable to act with only two members in place, it is expected that Board action will occur before December 31.