The National Labor Relations Board (“NLRB”) published a proposed rule June 22, 2011 which will make sweeping changes to the existing rules and regulations governing the conduct of representation elections.
Current Board policy encourages the regional directors to hold representation elections within 45 days following the filing of a representation petition. NLRB election data from 2009-2010 shows that the median time between the filing of petition and election is 38 days, while the average time between the filing of petition and election was 57 days. The proposed amendments, however, would dramatically reduce the time period to hold a representation election. While it is unclear what the timeframe would be, some estimate the proposed rule could shorten the timeframe to between 14 and 23 days.
Under the proposed rule, a pre-election hearing would have to begin no more than seven days following the service of notice of the representation petition. An employer must state its position on any election-related issues that it plans to raise at the hearing. The Administrative Law Judge (“ALJ”) will identify any disputes – but not until after the hearing. A post-election hearing will be scheduled 14 days after the tally of ballots (or as soon thereafter as practicable) to address any objections to the composition of the bargaining unit or voter eligibility issues. The ALJ will only accept evidence at the hearing if he or she determines that there is a genuine issue of material fact.
Unlike the current rules, there will be no pre-election litigation of bargaining unit composition or voter eligibility issues unless a dispute affects at least 20 percent of the proposed bargaining unit. This is a dramatic change from the current form of pre-election litigation which often involves disputes over whether some employees are supervisors and thus ineligible to vote. Parties will be prohibited from requesting a review of these issues until after the election – even where parties challenge the bargaining unit composition prior to the election. The Board will have the discretion to refuse a request to review the regional directors’ unit composition and eligibility determinations, as opposed to the mandatory review under current rules.
Some other changes in the proposed rule include:
- Employers must provide the union with a final list of eligible voters within two days, drastically shortened from the current seven days
- Eligible voter lists must contain both phone numbers and email addresses which are not currently required; and
- Unions may file election petitions electronically.
The proposed rule will undoubtedly give unions an advantage and already has generated sharp debate. Some argue this is a tactic by the Obama Administration to pursue, via rulemaking, some of the goals of the failed Employee Free Choice Act. The NLRB said its proposed changes aim to “curb unnecessary litigation; streamline procedure before and after elections; and enable the use of electronic communications.” The Board will accept public comments on the proposal for 60 days following the publication in the Federal Register.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, represents clients before the National Labor Relations Board and practices in all areas of labor relations. For more information about the proposed rule, representation elections, or the NLRB, please contact Pat (pjh@zrlaw.com) at 216.696.4441.