Labor Board Walks Where Congress Fears to Tread


In the June 22 Federal Register, the National Labor Relations Board (“NLRB”) published a Notice of Proposed Rulemaking (“Notice”) that will significantly change the representation election process by expediting the pre-election period. 76 Federal Register 36812-36847. Using the rationale that it is “streamlining” the representation election process, the NLRB plans to accomplish through expedited rulemaking part of what the Obama Administration failed to do when Congress could not pass the Employee Free Choice Act. Although the NLRB rarely engages in rulemaking of this scope and importance, this week’s Notice comes as little surprise given the open advocacy for its adoption by the AFL-CIO and other unions that were left disappointed at the close of the 111th Congress last December and given the current pro-union Democratic majority at the NLRB. As many employers learn of a unionization campaign only after the petition for election is filed, often months after the union has begun quietly campaigning, the expedited election process would give unions a considerable advantage, as employers will have far less time to convey their message during the truncated pre-election period.

The Nuts and Bolts of the Proposed Rule

Under the NLRB’s present rules, the Board is encouraged to hold representation elections within 45 days of the filing of a representation petition. The proposed rules seek to slash that period significantly. The thrust of the proposed rules is to expedite the election process. It would accomplish this largely by:

• permitting electronic filing of election petitions and other documents and requiring that the union be given the eligibility list in electronic form to speed up processing;

• scheduling pre-election hearings to begin no more than seven days after a petition is filed;

• deferring litigation over voter eligibility issues that pertain to less than 20 percent of the bargaining unit until after the election rather than adjudicating eligibility disputes before an election is conducted;

• eliminating pre-election appeals of rulings made by a Regional Director; and

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