NLRB Ambush Election Regulations Set To Go Into Effect - April 30

by Proskauer - Labor Relations

As anticipated, the new election regulations adopted by the Board shortly before the holidays are set to go into effect as planned on April 30, 2012.  In anticipation of this event, Acting General Counsel Lafe Solomon issued  GC 12_04 Guidance Memorandum on Representation Case Procedure Changes.pdf, a 24 page guidance to the Regional Offices on how to implement the Final NLRB Election Rules.pdf. The Acting General Counsel noted that "[o]ver the course of its history the Board has, from time to time modified its representation procedures to increase efficiency, prevent parties from abusing the process, and eliminate unnecessary delay in the resolution of questions of representation."

Despite this lofty goal, it seems that, as with virtually everything the Board does these days, the Guidance Memorandum is much more likely to raise more questions than it will answer.  It certainly will remain controversial.

The main question is: do the new rules change the timeframes for holding elections?

 The answer is yes, but only if the employer contests the petitioned-for unit.  

The Guidance Memorandum states, "The final rule does not establish new timeframes for conducting hearings or elections."  This is sort of accurate.  The new regulations do not alter the timing of representation elections where the parties agree on the voting unit and the election is held by Stipulated Election Agreement.  

The new regulations, however, absolutely alter the timeframes for conducting elections if the employer contests the petitioned-for unit.  If the employer decides it does not agree with the unit sought by the union, then the new regulations empower the Regional Director to curtail all aspects of bargaining unit litigation, the only point of which is to shorten the timeframe.  The Guideline Memorandum notes the new regulations allow the regions to:

  •  Issue a notice to show cause, which "elicits the functional equivalent of an offer of proof, and permits the regional director to determine whether to conduct a hearing and the regional director and hearing officer to plan for permitting or precluding litigation on certain or possibly all issues."  p. 17.  In other words, the employer will have to convince the Regional Director that its proof is worthy of a hearing but the discretion remains with the Regional Director.
  • Post-hearing briefs.  The Guidance Memorandum notes the "revised rules give the hearing officer discretion related to the filing and content of post-hearing briefs to regional directors..." and "The hearing officer should consult with regional management before determining whether to permit briefs."  p. 17.  The regulations give the Regional Director power to determine whether he or she will consider written legal arguments related to the hearing (if he or she grants a hearing).
  • Timing of election after decision. Curiously, the Guidance Memorandum states, "As soon as possible after issuance of a regional director's Decision and Direction of Election, the decision should be emailed or faxed tot he parties so that they have an opportunity to revise (or state) their position on the method, date, time and place of the election. The Board agent will attempt to reach the parties as expeditiously as possible to obtain agreement before the region specifies the method, date, time and place of the election."   P. 21.  

All of this still leaves unanswered the question of how soon after the decision will the election be held.  We do know, although it is mentioned elsewhere in the Guideline Memorandum, that Section "101.21(d) [of the regulations] is amended to eliminate the recommendation...that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review."  P. 3.  So, an employer gives up the possibility of having at least 25 days in which to communicate with its employees in a campaign if it contests the voting unit.

But how much sooner than 25 days?  No one knows the answer definitively, but employers should consider this passage in the Guidance Memorandum:

As the Board acknowledged in its Notice of Proposed Rulemaking (NPRM)....a party may waive its right to have the voter eligibility list for 10 days....A new waiver form has been created for that purpose which permits waiving all or part of the the 10-day period.

What this means is that if an employer contests the unit, the election possibly could be directed in as little as a week after the decision.  How?  The Board requires the voter eligibility list (the list of employees entitled to vote) to be provided 7 days after a decision is made by the Regional Director on a unit issue.  Ordinarily, the union must be given 10 days to consider the list, which would put an election at 17 days after decision. Under the Guideline Memorandum, the Acting General Counsel points out that it is possible for the union to waive "all or part" of the 10 days.  

Unions do not usually waive the 10 day period, but we are likely to see this happen more frequently in contested unit cases (and perhaps even uncontested cases) after the new regulations go into effect.  This is because after the Board's decision in Specialty Healthcare, which we previously addressed here, here and here, the Board's new standard for determining the appropriateness of a bargaining unit incentivizes unions to petition for the smallest grouping of employees.  A smaller group of employees is more likely to be known by the union, and such knowledge makes having the voter eligibility list for a period of time less relevant.

In sum, the new regulations  greatly inhibit an employer's ability to contest a unit grouping by forcing an election in much shorter timeframe.


Written by:

Proskauer - Labor Relations

Proskauer - Labor Relations on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.