NLRB Approves Resolution to Move Forward on \"Quickie\" Election Rule

December 8, 2011

On Wednesday, November 30, 2011, the three-member National Labor Relations Board ("Board") approved a resolution by a 2 to 1 vote to move forward on a narrowed version of the rule on "quickie" union representation elections proposed in June.

The resolution authorizes the Board to prepare a final rule to be published in the Federal Register containing six elements that were found in the originally proposed rule. The goal of the scaled down proposal is to decrease the delays that Board Members Pearce and Becker have argued are impediments to unions winning representation elections. The six elements of the final rule would eliminate pre-election litigation and appeals over a number of issues. The six amendments to the existing representation election process are summarized below:

The first amendment would limit the issues that may be raised at a pre-election representation hearing only to those issues that are relevant to whether a question of representation exists that should be resolved by an election. In other words, issues pertinent to the scope of the proposed bargaining unit, the supervisory status of certain individuals, and other issues that do not affect whether or not a representation election should be held would only be permitted to be raised after the election.
The second amendment would give the hearing officer at a pre-election representation hearing the discretion to determine whether or not post-hearing briefs may be filed.
The third amendment would eliminate the right to seek Board review of a Regional Director's pre-election rulings prior to the election, leaving only the possibility of a post-election review of any such rulings that have not been rendered moot by the election.
Because pre-election requests for review to the Board would be eliminated, the fourth amendment would end the practice of delaying the scheduling of a representation election for purposes of giving the Board the opportunity to rule on requests for review.
The fifth amendment would clarify the standard for seeking special permission to appeal to the Board.
The sixth amendment would give the Board full discretion to determine whether or not it will consider requests for review of a Regional Director's or Administrative Law Judge's disposition of post-election objections to the election.

These proposed amendments, while not as broad as those originally proposed in June, will nevertheless have the effect of speeding up the election process. This will have a significant impact on the manner in which employers react to the filing of a representation petition.

At this point, the Board will draft the language of the final rule, which must then be approved by a majority of the Board. The Board currently has a quorum of three members, but will be down to two members when Member Becker's recess appointment expires at the end of this year. It is clear that Members Pearce and Becker will do everything they can to get the final rule drafted and approved before the Board loses its quorum.

Overview

NLRB Approves Resolution to Move Forward on \"Quickie\" Election Rule

December 8, 2011

By: Erin S. Torcello

The first amendment would limit the issues that may be raised at a pre-election representation hearing only to those issues that are relevant to whether a question of representation exists that should be resolved by an election. In other words, issues pertinent to the scope of the proposed bargaining unit, the supervisory status of certain individuals, and other issues that do not affect whether or not a representation election should be held would only be permitted to be raised after the election.
The second amendment would give the hearing officer at a pre-election representation hearing the discretion to determine whether or not post-hearing briefs may be filed.
The third amendment would eliminate the right to seek Board review of a Regional Director's pre-election rulings prior to the election, leaving only the possibility of a post-election review of any such rulings that have not been rendered moot by the election.
Because pre-election requests for review to the Board would be eliminated, the fourth amendment would end the practice of delaying the scheduling of a representation election for purposes of giving the Board the opportunity to rule on requests for review.
The fifth amendment would clarify the standard for seeking special permission to appeal to the Board.
The sixth amendment would give the Board full discretion to determine whether or not it will consider requests for review of a Regional Director's or Administrative Law Judge's disposition of post-election objections to the election.