NLRB approves significant changes in union election procedures

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he purpose of a pre-election hearing shall be to determine whether a question of representation exists, and the hearing officer has authority to limit evidence submitted to that concerning whether there is a genuine issue of fact material to a question of representation;

post-hearing briefs shall be by permission;

there will be no pre-election appeals to the Board;

the rules shall eliminate the 25-day waiting period from direction (order) of election;

the Board's review of post-election issues shall be discretionary.

• The purpose of a pre-election hearing shall be to determine whether a question of representation exists, and the hearing officer has authority to limit evidence submitted to that concerning whether there is a genuine issue of fact material to a question of representation;

• post-hearing briefs shall be by permission;

• there will be no pre-election appeals to the Board;

• the rules shall eliminate the 25-day waiting period from direction (order) of election;

• the Board's review of post-election issues shall be discretionary.

The resolution passed by the Board is vague at best, and does not contain specific guidance as to what the exact changes will be. Even so, we can anticipate that they will include speedier elections, fewer opportunities for objections about who is and who is not included in the voting group (including supervisors), no right to appeal before an election takes place, and authority within the Board after an election to decide what questions should be reviewed and what should not. These are significant erosions to the rights of both employers and employees.

Although these measures have been adopted in substance, the Board has not yet prepared final written rules, which will be subject to review and approval. Other rules previously proposed but not included in the resolution remain under consideration and may be enacted at some future date.

The NLRB first announced proposed changes to its election rules on June 21 of this year and public comment was taken through Aug. 22. During this time, the Board received over 65,000 written comments, including those submitted by Ice Miller LLP, which is combining with SZD on Jan. 1, 2012. Yet less than three months later, the Board announced that it would hold a public vote on Nov. 30 on a "small number" of the proposed amendments. The total time between the close of the comment period and the vote was a mere 100 days.

The approval of a final rule will be equally rushed. As Member Hayes noted in his comments at the hearing, if he received the final rule tomorrow he would have only 20 working days to review and respond before the Board loses its quorum in December. He noted that, "This is not an emergency situation" in questioning the Board's haste in approving these changes.

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Published In: Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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