On June 22, 2011, the NLRB proposed sweeping changes to its union election procedures. On December 20, 2011, however, after receiving more than 65,000 comments, the NLRB issued a scaled-down set of new regulations ("Regulations") that left for further consideration the most controversial aspects of its originally proposed changes.
According to the NLRB, the Regulations are intended to "eliminate unnecessary litigation, delay, and duplicative regulations." The Regulations include the following five material changes:
- The pre-election hearing will focus on determining whether there is a question of representation and the hearing officer will have the power to limit the presentation of evidence that is not relevant to that issue, i.e., the hearing officer and the regional director will have the discretion to prevent the parties from presenting evidence or argument concerning the eligibility of select voters until after the election.
- The pre-election hearing officer will have the discretion to decide whether to accept post-hearing briefs, the subjects to be addressed in any such briefs, and when the briefs must be filed, i.e., the hearing officer can deny a party's request to submit a post-hearing brief, limit the subjects to be addressed, and impose a very short time period for filing any briefs.
- The parties cannot file a pre-election request for review of a regional director's decision to direct an election absent extraordinary circumstances, i.e., all requests for review generally will be deferred until after the election has been held.
- Elections can be scheduled promptly after the regional director issues the decision and direction of election; i.e., the practice of not scheduling the election sooner than 25 days after the regional directors issues a decision and direction of election has been eliminated.
- A request for review of a hearing officer's report regarding any election objections or determinative challenged ballots must be filed with the regional director within 14 days and the NLRB's review of the regional director's decision in the case of a directed or stipulated election shall be discretionary, unless the challenges and objections are consolidated with unfair labor practice charges for hearing before an ALJ, i.e., the regional director's decision likely will be final.
The NLRB determined that it needed more time to consider other proposed changes to its election procedures, including those requiring that:
- The pre-election hearing commence seven days after the petition for an election is filed;
- The non-petitioning party file a statement of position no later than the opening of the pre-election hearing and waive any issues not raised in the statement; and
- The employer must provide a list of eligible voters within two days after the decision and direction of election (rather than the current seven days), along with additional information that is not currently required, such as telephone numbers and e-mail addresses.
The Regulations likely will result in a considerable reduction in the number of days between the filing of a petition for an election and the date the election is held. Additionally, the Regulations likely will postpone the resolution of voter eligibility issues, including determinations of who may be supervisors, until after the election has been held.
Accordingly, employers who receive a petition for an election must be prepared to react quickly and make critical determinations regarding the status of potential supervisors early in the process. Indeed, employers who wish to remain union-free should take steps now, before a petition for an election is filed.