On June 22, the National Labor Relations Board published in the Federal Register proposed amendments to its procedures for representation elections. While the Board's stated intent is to "reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing," the impact on employers is clear: once a representation petition is filed, employers will have dramatically less time to communicate with employees about the election. This is sure to result in significantly increased union election victories.
The Board will engage in rulemaking to achieve these changes and will offer the public the opportunity to comment through a public hearing scheduled for July 18 and, possibly, July 19, as well as through a 60-day period for written comments. These deadlines suggest the Board is fast-tracking the public comment period and it is likely a final rule will be issued expeditiously.
Set forth below is a comparison of the current procedures in representation cases. The changes proposed by the Board, which are numerous and significant, include:
- No pre-election challenge of voter eligibility if less than 20 percent of the bargaining unit is at issue;
- No pre-election appeal to NLRB of Regional Director rulings;
- Pre-election hearings (which will become rarer) would begin no more than seven days after the petition is filed (absent "special circumstances") and post-election hearings would begin no more than 14 days after the ballots are counted (with some exceptions);
- The list of eligible voters (name, work location, shift and job classification) would be provided to the union no later than the opening of the pre-election hearing (versus after an election has been directed);
- The Board would likely reduce the number of regional director decisions it reviews; and
- The final list of eligible voters would be given to the union sooner and in an electronic format, including phone numbers and email addresses.
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Current procedures
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Proposed procedures |
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Parties or the board cannot electronically file or transmit important representation case documents, including election petitions.
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Election petitions, election notices and voter lists could be transmitted electronically. NLRB regional offices could deliver notices and documents electronically, rather than by mail, and could directly notify employees by email, when addresses are available
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The parties receive little compliance assistance. |
Along with a copy of the petition, parties would receive a description of NLRB representation case procedures, with rights and obligations, as well as a "statement of position form," which will help parties identify the issues they may want to raise at the pre-election hearing. The regional director may permit parties to complete the form at the hearing with the assistance of the hearing officer.
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The parties cannot predict when a pre- or post-election hearing will be held because practices vary by region. |
The regional director would set a preelection hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable).
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In contrast to federal court rules, the board's current procedures have no mechanism for quickly identifying what issues are in dispute to avoid wasteful litigation and encourage agreements. |
The parties would be required to state their positions no later than the start of the hearing, before any other evidence is accepted. The proposed amendments would ensure that hearings are limited to resolving genuine disputes.
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Encourages pre-election litigation over voter-eligibility issues that need not be resolved in order to determine the outcome of an election or whether one is necessary. |
The parties could choose not to raise such issues at the pre-election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20 percent of the bargaining unit would be deferred until after the election. |
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A list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election. |
The non-petitioning party would produce a preliminary voter list -- including names, work location, shift, and classification -- by the opening of the pre-election hearing |
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Current procedures |
Proposed procedures |
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The parties may request board review of the regional director's pre-election rulings before the election; they waive their right to seek review if they do not do so.
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The parties would be permitted to seek review of all regional director rulings through a single, post-election request. |
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Elections routinely are delayed 25-30 days to allow parties to seek board review of regional director rulings even though such requests are rarely filed, even more rarely granted, and almost never result in a stay of the election. |
The pre-election request for review would be eliminated, along with the unnecessary delay. |
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The board itself is required to decide most post-election disputes. |
The board would have discretion to deny review of post-election rulings -- the same discretion now exercised concerning preelection rulings -- permitting career regional directors to make prompt and final decisions in most cases.
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The final voter list available to all parties contains only names and home addresses, which does not permit all parties to utilize modern technology to communicate with voters. |
Phone numbers and email addresses (when available) would be included on the final voter list.
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Deadlines are based on outdated technology — for example, allowing seven days after the direction of election for the employer to prepare and file a paper list of eligible voters. |
The final voter list would be produced in electronic form when possible, and the deadline would be shortened to two work days. |
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Representation case procedures are described in three different parts of the regulations, leading to redundancy and potential confusion. |
Representation case procedures are consolidated into a single part of the regulations. |
Unions must be thrilled — quicker elections will mean more union election victories. Employers should prepare themselves for a "brave new world" in which many, if not all, of the amendments become reality — and soon. Employers should also consider expressing their views to the Labor Board during the public comment period.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.