The Board's Acting General Counsel has issued guidance on the rules; their full impact will depend on the outcome of a lawsuit challenging their implementation, with a decision due by May 15.
The National Labor Relations Board's (NLRB's or Board's) new representation election rules (Election Rules) will go into effect as scheduled today, April 30. This follows a flurry of activity late last week, including a detailed Guidance Memorandum issued by the NLRB's Acting General Counsel and the publication of concurring and dissenting statements on the Election Rules from Chairman Mark G. Pearce and Member Brian Hayes, respectively.
However, implementation of the new election procedures remains contingent on a decision by the U.S. District Court for the District of Columbia on the litigation brought by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW) challenging the final Election Rules. In response to a motion to stay implementation of the Election Rules pending a decision by the court, Judge James E. Boasberg issued an order stating that a decision on the merits will be issued by May 15. As discussed in more detail below, this means that the court's decision will be issued before an election can occur under the new "quickie" Election Rules. In the meantime, representation petitions filed on or after April 30 will be processed under the new Election Rules, at least until Judge Boasberg's decision is issued.
The NLRB announced the Election Rules on December 21, 2011, marking the culmination of a six-month process that included the issuance of a June 22, 2011, Notice of Proposed Rulemaking (NPRM), a public hearing, and an unprecedented public debate between the Board members. The NPRM outlined a massive regulatory overhaul to National Labor Relations Act (NLRA) election procedures designed to shorten the period of time between the filing of an election petition and the holding of the election.
The NPRM triggered an overwhelming public response. At public hearings on July 18 and 19, 2011, the Board heard testimony from 66 witnesses. By September 2011, interested parties had filed more than 65,000 sets of comments concerning the Election Rules.
Facing a loss of quorum upon expiration of Member Becker's term at the end of 2011, the Board ultimately announced scaled-back rule changes based on a subset of the procedural reforms found in the NPRM. The Board did so in a resolution adopted by a 2-1 vote in a public meeting on November 30, 2011, with Member Hayes dissenting. The final Election Rules that ultimately were published on December 21, 2011, included the following changes:
Amendment #1 – Construes Section 9(c) of the NLRA to state that the purpose of a pre-election hearing is only to determine if a question concerning representation exists.
Amendment #2 – Authorizes hearing officers presiding over pre-election hearings to limit the presentation of evidence on issues of supervisory status or other issues of voter eligibility or inclusion if the hearing officers do not believe that such issues are "relevant to the existence of a question concerning representation."
Amendment #3 – Allows post-hearing briefs only in certain cases. Briefing will be limited at the discretion of the hearing officers.
Amendment #4 – Eliminates the right to seek pre-election review by the Board. Almost all appeals, including appeals related to election conduct, will be consolidated in one appeal after the election is conducted.
Amendment #5 – Eliminates the 25-day waiting period to conduct elections in cases where a party has filed a pre-election request for review. Such a request for review will not be allowed under Amendment #4.
Amendment #6 – Requires "special permission" for pre-election review based only on "extraordinary circumstances."
Amendment #7 – Makes Board review of any remaining post-election disputes discretionary and enables the Board to reject any appeal that does not "present a serious issue for review." This aligns the post-election standard for appeals with the current standard for pre-election requests for review, which are discretionary.
Amendment #8 – Eliminates certain portions of the Board's regulations that were deemed to be redundant.
Challenge to the Election Rules
The U.S. Chamber of Commerce and CDW (represented by Morgan Lewis) immediately mounted a legal challenge to the Election Rules. Cross-motions for summary judgment were filed and have been fully briefed. In their briefs, the Chamber and CDW argued first that Chairman Pearce and Member Becker lacked statutory authority to promulgate the final Election Rules without Member Hayes' participation in the vote to approve the final Rules.
The plaintiffs also argued that the Election Rules conflict with Sections 9(c)(1) and 3(b) of the NLRA because the Election Rules authorize hearing officers to exclude all evidence regarding issues of voter eligibility or inclusion, while at the same time preventing employers from seeking pre-election review by the Board in order to stay an election.
Finally, the plaintiffs argued that the Election Rules were issued in an arbitrary and capricious manner, including by overturning Board precedent on the proper scope of the pre-election hearing without three affirmative votes, contrary to the Board's long-standing practice.
New NLRB Guidance on Election Rules
On April 26, 2012, the NLRB's Acting General Counsel issued detailed guidance to the regional offices and the public on how the new representation case procedures are to be implemented. The Guidance Memorandum states at the outset that "it does not set forth new time goals for the issuance of decisions or the conduct of elections." However, the election procedures outlined in the Guidance Memorandum undoubtedly will result in faster NLRB elections. Under the new procedures, regional offices are to schedule hearings in seven days (or five working days) and are to grant postponements only in limited circumstances. The Guidance Memorandum also makes clear that a union may waive its right to have voter addresses (i.e., the Excelsior list) for 10 days.
Elections subject to the new procedures could be held anywhere between 17 to 30 days after the filing of a petition. A 17- to 20-day time frame is possible where the union agrees to waive its right to have the Excelsior list for 10 days. Such a waiver is more likely in smaller unit elections where the union already may have direct access to most or all affected employees.
The Guidance Memorandum also clarifies pre-election and post-election hearing procedures. Hearing officers are specifically instructed to limit pre-election hearing evidence to the existence of a "question concerning representation," as now defined by the Election Rules. Issues to be considered at the pre-election hearing include jurisdiction, labor organization status, election bars, and whether there is an appropriate unit for an election. Evidence concerning individual eligibility and inclusion issues (e.g., supervisory status, boundaries of the unit description) is to be excluded, unless such issues collectively would impact more than 10% of the unit. (Notably, this 10% "rule of thumb" was not contained in the final Election Rules.) Finally, the guidance also encourages the use of offers of proof to determine whether certain evidence-if any-should be admitted at a pre-election hearing. The Guidance Memorandum does not address time frames for stipulated or consent elections.
The full impact of the Election Rules and the Acting General Counsel's Guidance Memorandum obviously depends on the outcome of the litigation before Judge Boasberg, whose decision will be issued by May 15, before any election can be held under the new Election Rules. Employers should stay tuned for Judge Boasberg's decision and its potential impact on the Election Rules going forward.