NLRB finalizes quick election procedures

As expected, the National Labor Relations Board (NLRB) pressed ahead by a 2-1 vote with a final rule implementing some of its recently proposed changes to speed up the procedures for union elections. The NLRB Chair wanted to finalize the rule before the December 31, 2011, expiration date of Board Member Craig Becker’s term, which will leave the Board without a quorum (having only two members and three unfilled positions). The key changes are:

• The hearing officer will have authority to limit evidence to whether a question of representation exists (i.e., whether the union really has enough support to proceed with an election);
• The parties will be allowed to file post-hearing briefs only if permitted by the administrative law judge, who will have the power to specify the subjects to be addressed and the time for filing;
• The parties won’t be allowed to appeal pre-election rulings by the regional director (instead, they will have to wait until after the election, and then only do so if the issue isn’t moot);
• The standard 25-day waiting period between the regional director’s decision that an election should proceed, and the date of the election, will be eliminated; and
• The Board will have discretion whether to accept an appeal of a post-election decision by a regional director or administrative law judge.

The new procedures take effect on April 30, 2012 (76 Fed Reg 80138, Dec. 22, 2011).

Tips: This may not be the last you hear of the Board trying to speed up the union election process. The Board proposed more extensive revisions on June 22, 2011. For now, they have decided to proceed with what the Chair describes as the “less controversial” elements of that original proposal, with the hope of revisiting the complete proposal when the Board is back up to full strength.

At this point, it appears that the Board will be down to two people as of January 1, 2012. A two-person Board can’t rule on any cases, but that won’t stop regional NLRB offices from conducting elections, accepting complaints and investigating alleged violations of the National Labor Relations Act. President Obama recently nominated two individuals to serve on the Board: Sharon Block and Richard Griffin. There is speculation that if Congress goes into recess for the holidays, the President may make one or more recess appointments to the Board. Vigilant will keep members apprised of any new developments.