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NATIONAL LABOR RELATIONS BOARD PASSES LIMITED VERSION OF UNION-BACKED ELECTION RULE CHANGES

On November 30, during a closely-watched session, National Labor Relations Board Chairman Mark Pearce and Member Craig Becker voted to proceed with preparation of a final rule modifying the Board's election procedures to speed up the process in certain circumstances.  Member Brian Hayes, the only Republican Board member, opposed the majority's effort as a mistake that would "ultimately cause harm to the agency and the constituencies we serve."

The changes that ultimately were passed represent a substantially more limited version of what initially had been proposed by the Board's majority and are summarized as follows:

• Elimination of pre-election appeals to the Board from the actions of the Regional Director on an election petition, providing instead only for a single, discretionary appeal of pre-election and post-election issues after the votes are cast.  An appeal to the Board prior to the election is limited to issues that otherwise would escape Board review if not raised prior to the election.
• Express direction that a pre-election hearing is to determine only whether a question concerning representation exists, and that the hearing officer has authority to limit evidence taken at the hearing where the evidence does not have relevance to a genuine issue of fact material to that issue.  This means that questions of individual voter eligibility (as opposed to appropriate bargaining unit composition) will be litigated after the election, as opposed to before.  Also, the hearing officer may decline requests of parties to submit post-hearing briefs, which right previously was guaranteed by the Board's rules.
• Elimination of the current requirement that the vote may not be held sooner than 25 days after the Board's Regional Director issues a Direction of Election.  As a result, some elections likely will be held sooner after the Direction of Election than was previously the case.

The new rules were passed notwithstanding substantial criticism from the business community and others who viewed this move as an attempt by labor-friendly Board members to speed up the election process prior to the end of Member Becker's recess appointment that ends on December 31.  As a result of the criticism and the threat by Member Hayes to resign, which move would have left the Board with two members and would have divested the Board from authority to conduct its business, the majority watered down the original proposal, eliminating the following proposed changes:

• The requirement that a hearing be held within seven days of the filing of a union's representation petition.
• Allowing the union's petition to be filed electronically, rather than the current practice requiring filing by hand or regular mail.
• The requirement that the employer prepare and file a comprehensive "statement of position" on the union's election petition no later than the date of the hearing, together with the requirement that any issues not raised by the employer in its statement are waived by the employer and may not be raised later.
• The requirement that unions be given employees' email addresses and telephone numbers prior to the election.
• The requirement that the voter eligibility list ("Excelsior list") be given to the union within two work days of the Direction of Election, instead of the current rule allowing for seven work days.

These additional proposals remain open to future debate and adoption by the Board.  However, with the impending expiration of Member Becker's recess appointment, the question of whether these additional proposals stand a chance of passing remains unclear.

The Board will draft a final rule codifying the adopted changes. The final rule is intended to be issued prior to the expiration of Member Becker's term. Opponents of the changes are working to block even the more limited the changes via legislation (the Workforce Democracy and Fairness Act, H.R. 3094), and potentially through judicial action.

Even though the new rule will have less impact on employers than the originally proposed rule, the new rule still substantially shortens the period from filing of the petition to the date of election from the current Board election target of 42 days.  Elections almost certainly will be held more quickly. The actual period will be determined by the circumstances of each case. The fact that elections will be held more quickly underscores the need of employers to remain constantly vigilant regarding potential union organizing efforts in order to address such efforts at the earliest possible opportunity.

Brian Christensen, Partner
Spencer Fane Britt & Browne LLP