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New NLRB Election Rules

Now that we have a full 5-member NLRB, the Board has proposed new election rules.  The rules were first proposed in 2011, but a court set them aside due to the 2-member Board controversy (another long story).  The employers have called these the “ambush” rules, but as you can see, they are hardly that.  Today, most NLRB elections are conducted within about 40-45 days.  I figure elections under the new rules will be held around 15 days, if that.  The best part, though, is that the old issues that hung everything up, like whether or not someone was a supervisor or otherwise ineligible to vote now get put aside for a later ruling if they don’t amount to more than 20% of the employees.

The NLRB is soliciting public comment, but it’s highly likely the rules will go into effect this summer.  The AFL-CIO General Counsel has neatly summarized the main points:

Petitions

  • Provides for electronic filing of the petition for election
  • Requires simultaneous service on non-petitioning parties (supplementing prior practice of service by Board)
  • Requires simultaneous filing of showing of interest (as opposed to permitting it to be filed seven days later)
  • Requires service of form describing process and blank statement of position form

Statement of position form

  • The Employer and any other non-petitioning parties are required to complete a statement of position form
  • The statement of position form will solicit the parties’ position on the Board’s jurisdiction to process the petition, the appropriateness of the petitioned-for unit, and proposed exclusions from the petitioned-for unit, and any other issues that a party intends to raise at hearing
  • The statement of position form is due no later than day of hearing
  • If issues are not raised on form they are waived absent good cause with the exception of individual eligibility issues that can still be raised via challenges to ballots
  • Employer must include a list of employees in the petitioned for unit (and any proposed additions to the unit) but the list served on union need not contain contact information

 Hearing 

  • Regional Director must set a hearing date no later than seven days from service of petition absent “special circumstances”
  • With notice of hearing, RD would serve initial notice of election and employer would be required to post
  • The hearing concerns only whether a question concerning representation exists
  • The hearing officer is directed to use the statement of position forms to identify issues in dispute
  • The hearing officer is directed to request offers of proof on issues in dispute to determine if there are any genuine issues of material fact warranting presentation of evidence
  • If the only issues in dispute concern the eligibility of employees constituting less than 20% of the unit, the hearing officer is directed to close the hearing and permit the disputed employees to vote subject to challenge (as the final notice of election will explain)
  • Closing argument is substituted for post-hearing briefs unless the latter are permitted by the hearing officer
  • The RD is permitted to issue a direction of election with a decision to follow
  • The decision must specify election details, including the election date which should be the “earliest date practicable”
  • The decision should be transmitted electronically to the parties

 Pre-election Board review

  • The parties will no longer be able to seek Board review of the Regional Director (RD)’s decision prior to the election (such review is currently discretionary)
  • The grounds for special permission to appeal are narrowed to circumstances where the dispute would otherwise be rendered unreviewable
  • Because the parties’ ability to seek pre-election review is eliminated, the rule barring the setting of an election sooner than 25 days after the direction of election in order to permit such review is eliminated

 List of eligible voters

  • The rules would codify but modify the requirement that the employer provide a list of eligible voters to the union
  • The list would, in addition to names and home addresses, include telephone numbers, email addresses, work location, shift and classification
  • The employer would provide the list to the union in electronic form
  • The employer would provide the list within two days of a direction of election absent “extraordinary circumstances”

Election date

  • Can be no earlier than two days after the posting of the final notice of election (reduced from three)
  • Union can waive its right to have list of eligible voters for at least 10 days prior to election

 Post-election process

  • Parties are permitted to seek post-election Board review of matters they would previously have raised pre-election
  • Objections are due seven days after tally and parties must provide offer of proof with objections (as opposed to current additional seven days for the latter)
  • RD will conduct a hearing only if offer together with administrative investigation raises genuine issue of material fact
  • RD will set hearing to begin within 14 days of tally or “as soon thereafter as practicable”
  • In all cases where a hearing is necessary, the hearing will be conducted by a hearing officer with the parties having a right to review by the RD
  • The parties will have a right to seek Board review of both pre-election and post-election decisions by the RD but such review will be discretionary (as is currently the case for pre-election decisions)