Originally published January 9, 2012

Please click here to view the related article: NLRB Rings In The New Year: Union Election Rules And Recess Appointments

The final rule concerning union representation elections, passed by the NLRB on December 22, 2011 and scheduled to take effect on April 30, 2012, provides that Board regulations are amended to state as follows:

  • The purpose of a pre-election hearing is to determine if a question of representation exists (i.e. whether a secret ballot election should be held) and not to determine questions of voter eligibility which can be resolved after an election is held. As such, hearing officers are given authority to limit the presentation of evidence in pre-election hearings;
  • Post-hearing briefs may only be filed with the permission of the hearing officer;
  • Parties must now wait until after an election is held to request Board review of a regional director's decision to direct a secret ballot election. Under current procedure, parties can request review prior to the election. In order to rule on such pre-election requests, the Board currently recommends that the election not be scheduled sooner than 25 days after the direction of an election. The new rule eliminates the recommended 25 day delay;
  • Requests for special permission to appeal to the Board will only be granted under extraordinary circumstances and such requests will not stay the election;
  • Board review of the regional director's resolution of post-election disputes is discretionary.

The road to passage of the final rule was fraught with political drama. The lone management-side Board member, Brian Hayes, who had dissented from the initial rule proposal, apparently suggested to Board Chairman Mark Pearce that he was considering resigning from the Board in order to deprive the Board of the necessary quorum to pass the rule. What followed were several accusatory public letters from Members Hayes and Pearce as well as members of Congress. Member Hayes did not ultimately resign from the Board, but voted against the resolution, which passed less than one month prior to the expiration of Board Member Becker's term (thus just prior to the resulting loss of quorum).

Apart from providing fodder for the media and members of each camp (as well as entertainment value for proponents of political theater), the public dispute between Members Hayes and Pearce illustrates sharply that the final rule may have significant implications for employers. This is not a case of esoteric procedural rules with little practical implication, but of changes to the scope and process of pre-election hearings which may limit employers' ability to effectively campaign against unionization. Please contact us if you have any questions or concerns regarding the impact this new rule may have on your business.

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