On December 22, 2011, the National Labor Relations Board (the “Board” or the “NLRB”) issued another “union-friendly” rule that could speed up the union election process, leaving employers with limited time to respond to a union organizing drive. A pending lawsuit challenging the legality of the new rule is outstanding. Notwithstanding, the rule applies to all newly-filed election petitions effective today as the court has not postponed the rule’s effective date despite the ongoing litigation. The court will rule on the legitimacy of the rule by May 15 (before an election could take place under the new rule).
Initial Hearing to Take Place a Week or Two After a Petition’s Filing
A memorandum recently issued by the NLRB’s Office of the General Counsel directs the Regional Offices to hold an initial hearing within five working days of a petition’s filing. The Regions may grant adjournments, but the hearing must take place no later than 14 days after the petition’s filing absent extraordinary circumstances. In short, a pre-election hearing almost always will take place a week or two after a petition is filed.
Pre-Election Hearings Limited to Questions Concerning Representation
In an attempt to hasten the pre-election process, the new rule limits pre-election hearings to questions concerning representation. This includes questions regarding limited issues, such as election bars, jurisdictional questions, unit eligibility formulas, unit scope determinations and whether a petitioned-for unit is appropriate. This generally will not include questions concerning the voting eligibility of individual workers, which formerly were “fair game” for the pre-election hearing. An election usually will be held before questions about the eligibility of individual workers are addressed.
Pre-Election Appeals to the Board Extremely Limited
Under the new rule, the parties must wait until after the election to appeal pre-election determinations to the Board absent special permission. Special permission is limited to extraordinary circumstances when it appears the determination at issue would evade review unless addressed pre-election. Previously, a party could file a pre-election request for review to the Board and another request for review after the election. Additionally, parties now only can appeal a Hearing Officer’s rulings during the pre-election hearing to the Regional Director and only if the Regional Director allows the appeal.
Post-Hearing Briefs Subject to Hearing Officer’s Discretion
Under the new rule, parties can file post-hearing briefs only if the Hearing Officer allows them to do so. Where Hearing Officers permit briefs, they can limit the scope of the brief and set forth deadlines for the submissions, thereby, further expediting the process.
No More Waiting Period After Direction of Election
An employer has up to seven days after the direction of an election to supply the Regional Director with a list of eligible voters. The union has a right to have this list (referred to as the Excelsior List) for at least 10 days prior to the election. The General Counsel memorandum highlights that the union can waive this right. Accordingly, the Regional Director can schedule the election less than 10 days after deciding to hold the election because the new rule eliminates a previous recommendation that the Regional Director schedule an election no sooner than 25 days after directing an election.
Limited Ability to Challenge Votes at Post-Election Hearing
Post-election hearings to address ballot challenges and objections are more limited now. For instance, the General Counsel memorandum explains that the Regional Director may schedule a hearing only if the objecting party offers evidence that could overturn the election, or that raises material and substantial issues about a voter’s eligibility. Additionally, the Regional Director, not the Board, will decide all exceptions to a Hearing Officer’s post-election report. (However, the Board still could grant a request for review of the Regional Director’s decision on the exceptions.)
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Employers potentially subject to union organizing should speak with a lawyer in Gibbons Employment & Labor Law Department about implementing a contingency plan that would enable them to effectively respond to an organizing campaign in light of the new rule, which may require them to act very swiftly if they want to provide their workers with the facts about unions prior to an election. We will update you regarding the court’s upcoming decision about the rule’s legality.
James J. La Rocca is an Associate in the Gibbons Employment & Labor Law Department.