NLRB Approves Changes to Union Election Rules, 2 to 1

by Seth Borden

On Wednesday, the NLRB voted 2-to-1 to approve a resolution to amend the rules and regulations related to its election process. Chairman Mark Pearce and Member Craig Becker voted in favor of the changes and Member Brian Hayes voted against them. The amendments that passed were trimmed from a more comprehensive set of proposed changes published in the Federal Register on June 22, 2011. The approved changes are intended to reduce litigation in election cases and will also significantly shorten the time between any pre-election hearing and the election date.

The approved changes will include:

a) giving hearing officers greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”
b) giving hearing officers the discretion to deny requests by parties to submit post-hearing briefs
c) denying the parties the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election
d) eliminating the 25 day period between the issuance of a decision and direction of election by a regional director and the holding of an election
e) clarifying the rules regarding a party’s ability to seek special permission to appeal a hearing officer ruling to the Board
f) giving the Board the discretion to refuse to review a regional director’s resolution of post-election disputes

The Board did not release the final rules that will amend or replace the existing language in the regulations. It also did not indicate when the new rules would become effective. Unless the language is already written and the date is already set, it is reasonable to believe both will be impacted when Member Becker’s recess appointment expires at the end of this month, leaving just two members on the Board.

At roughly the same time as the Board action, Congress passed a bill designed to undo parts of the proposed rule changes. John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) passed by a vote of 235-188. The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.