NLRB Leaves Coal In Employer Stockings By Issuing Ambush Election Rules, Business Groups Immediately Sue

by Proskauer - Labor Relations
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The holidays used to be such a quiet time of year as people slowly peeled off to take time to enjoy the season. This holiday season is different, of course.  With the impending departure of NLRB Member Becker by the end of this year, we anticipated a flurry of activity as the NLRB attempts to complete as much of its agenda as possible before it becomes incapacitated by having only two members. 

As expected, the NLRB made good on resolution to drastically change representation case handling rules. Today, December 21, 2011, the agency issued its Final NLRB Election Rules. These rules have an effective date of April 30, 2012.   The U.S. Chamber of Commerce and the Coalition for a Democratic workplace immediately sued to block implementation of these rules. Here is a copy of the Chamber of Commerce, et al. v. NLRB (Ambush Election Rule) Complaint).   

The final rules will alter the handling of representation case with the alleged purpose being, according to the NLRB, to "reduce unnecessary litigation in representation cases and thereby better enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation."  To accomplish this, however, the proposed rules in effect  cede the Board's statutory authority and mandate to determine the appropriate bargaining unit to career employees in the NLRB's regional offices.  

The eight changes to the rules can be summarized as requiring the employer to accept the petitioned for unit, regardless of whether it is appropriate, or face an election on a much shorter timeframe.  Here is a snapshot of the changes to the rules:

First, the new rules will "expressly construe Section 9(c) of the Act . . . to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists."  The NLRB's Outline of Law and Procedure in Representation cases defines a question concerning representation as follows, "Normally, a question concerning representation is found to exist when the union has made a demand for recognition which the employer has refused." (Section 7-110).

Second, the new rules will amend existing rules to "ensure hearing officers presiding over pre-election hearings have authority to limit the presentation of evidence to that which supports a party's contentions and which is relevant to the existence of a question concerning representation."

These significance of these first two rule changes is to effectively give the hearing officer the discretion and authority to determine whether there should even be a hearing. These changes must be read in connection with the NLRB's adoption of the micro union standard in the Specialty Healthcare decision this past summer, where employers now must show an "overwhelming community of interest" in order for the regional director to order an election in a unit different than the one petitioned for by the union.  So, under the new rules, if the region decides that the employer's contentions about what constitutes an appropriate unit lack merit, then there will be no hearing or the hearing will be limited.

Third, the new rules give the hearing officer "discretion over the filing of post-hearing briefs, including the subjects to be addressed and the time for filing."  The effect of this is self-evident.  While it is intended to reduce the time that elapses between the filing of a  petition and the holding of the election, it means that the regional director will now have broad discretion to not longer consider any post-hearing written advocacy of a party's position.  This is unfortunate because, frankly, post-hearing briefs are an essential part of the process.  They ensure that all relevant legal authority is considered, and they also complete the record for purposes of appeals or post-election litigation.

Fourth,  the new rules eliminate the "parties' right to file a pre-election request for review of a regional director's decision and direction of election....until after the election."  This means that the Board itself will not become involved in a representation case until after an election has been held, which amounts to an abdication of its legal responsibility.

Fifth, the new rules eliminate the "recommendation that the regional director ordinarily not schedule an election sooner than 25 days after the decision and and direction of election to give time to the Board to rule on a pre-election request for review."  This is a function of the elimination of pre-election requests for review to the Board.

The fourth and fifth changes made by the new rules, read together, are very significant.  They essentially mean that if an employer challenges the appropriateness of the petitioned for unit, rather than enter into a stipulated election agreement, the Regional Director can set an election much sooner than 25 days and there will be no right to appeal until after the vote has occurred. This could effectively punish employers who cannot accept the union's proposed unit but instead  seek a unit that fits within the organizational structure of their business.  Employers will be forced with accepting the prosoed unit and get more time to communicate with employees or risk challenging the unit and having the vote held much sooner.

Sixth, the new rules will be amended to "make explicit and narrow the circumstances under which a request for special permission to appeal to the NLRB will be granted."  This closes down any opportunity to make a special appeal to the NLRB prior to the election from ruling by the hearing officer.

Seventh, the new rules eliminate post-election review as a matter of right, ostensibly to "create a uniform procedure for resolving election objections and potentially outcome-determinitive challenges in stipulated and directed election cases and to provide that Board review of regional directors' resolution of such disputes is discretionary."  This places even more authority in the regional director's hands to decide disputes and allows the Board the ability to simply refuse to  hear an appeal.  Thus, in some cases, an entire representation case proceeding could be completed with no involvement of the Board -- again, an abdication of the Board's statutory responsibility.

Eighth, the new rule eliminates parts of the existing regulations deemed redundant or rendered unnecessary because of the changes made by the new rules.

In the final analysis, the rules add significant penalties to challenging the appropriateness of a unit.  The union can now petition for the smallest unit it wants and is almost guaranteed it will get a vote on it regardless of whether such a unit makes any sense in the employer's structure. It would be possible, for example, for an employer to now be faced with multiple bargaining units despite the actual integration of its workforce.  Now, that's a lump of coal we did not need during this holiday season (or any other time for that matter).

The litigation, of course, will play an important part in how this plays out.

Stay tuned.  We will keep you posted.

Written by:

Proskauer - Labor Relations
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