NLRB Chairman Says He Will Push For Additional Election Rule Changes

MarkPearce.jpgIn keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.

In December 2011, the National Labor Relations Board issued a final rule that will radically change representation election procedures. Among other changes, the rule will:

  • Restrict pre-election hearings for determining only if a question of representation exists. Issues such as voter eligibility would be resolved post-election.
  • Provide hearing officers the authority to limit evidence introduced at a pre-election hearing to evidence that is relevant to a genuine issue of material fact on whether a question of representation exists.
  • Give hearing officers discretion over the filing of post-hearing briefs, including over the subjects to be addressed and the time for filing.
  • Eliminate the parties’ right to file a pre-election request for review of a regional director’s decision and direction of election and instead defer all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings.
  • 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.
  • Limit the circumstances under which a request for special permission to appeal to the Board will be granted.
  • Make Board review of a regional director's or judge's resolution of post-election disputes discretionary after both stipulated and directed elections.

The final rule did not include other significant changes initially proposed by the Board in June 2011 that would expedite union elections and impose procedural requirements. The initial proposal contained additional amendments, such as requiring that a pre-election hearing be held within seven days after filing the petition and mandating that employers provide the union with a preliminary voter list before the pre-election hearing and with a final voter list within two days after the election is scheduled. The slightly scaled back version of the rule was approved by Chairman Pearce and then-Member Craig Becker before it was believed that the Board would be left with only two sitting members and lose its quorum in 2012.

The first week in January, however, President Obama sat three new members to the 5-member panel via recess appointment, a move that was met with challenge and controversy. Despite the legislative and judicial challenges to this move, Chairman Pearce seems to be emboldened by the recess appointments, suggesting that the remaining portions of the proposed election rule changes are coming. The NLRB’s regulatory agenda notes that the Board is “continuing to deliberate on the rest of the proposed amendments and expects to address them in a subsequent final rule.”

The release date for a final rule incorporating the omitted representation election proposals remains “to be determined.”

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.