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National Labor Relations Board Attempts to Speed up Elections for Labor Unions

By: Nick Nykulak | 3/28/2012 | Category: Labor Law-Union Elections
The National Labor Relations Board (NLRB) has recently amended its representation (election) case procedures in an effort to reduce what it perceives to be "unnecessary litigation and delays," allegedly caused by employers, prior to NLRB conducted elections. In essence, the NLRB has implemented new rules in an effort to strengthen a labor union’s ability to win an election, even with an inappropriate bargaining unit, and to allow bargaining to start with the employer.

Traditionally, when a petition for an election is filed with the NLRB, the regional director for the NLRB may conduct an investigatory, non-adversarial hearing to decide various pre-election issues, including whether certain employees are supervisors under the National Labor Relations Act ("Act") and not permitted to vote in the election; whether employees are otherwise appropriate for inclusion in the bargaining unit; or whether the union’s proposed bargaining unit is an appropriate unit under the Act.

Issues relating to the appropriateness of the bargaining unit often include determining the job duties of the employees proposed for the unit; determining the unit’s geographical location; or determining whether the employees within the unit otherwise share a community of interest with one another. A hearing to decide these issues usually takes place 14 to 21 days from the date the election petition is filed.

After the hearing takes place and evidence is presented, the parties can submit post-hearing briefs to clarify their positions and arguments. The regional director will then decide any disputed issues and the parties may appeal certain decisions made by the regional director prior to conducting an election. Challenges to the appropriateness of the bargaining unit affecting employees’ eligibility to vote in an election are generally settled prior to conducting the election. The NLRB currently hears all appeals filed by the parties post-election, and in certain circumstances, hears appeals prior to the election.

However, the NLRB’s new representation case procedures will limit all challenges to whether an election should take place, and the hearing officer will have the authority to limit issues at the hearing that he deems relevant to the question of "whether an election should be held." The hearing officer will also have the discretion to accept or reject the filing of post-hearing briefs. Any party wishing to challenge a decision made by the regional director prior to the election, or to challenge the conduct of the election itself, will be consolidated into a single request for review to the NLRB, and only after the election has taken place. The NRLB’s review of a regional director’s decisions regarding any pre-election or post-election issues will now be discretionary.

These amendments are set to take effect on April 30, the same day the NLRB’s employee rights posting notice is also set to be implemented. The United States Chamber of Commerce has already filed a lawsuit to block the rules from taking effect, claiming that the NLRB’s new election procedures violate the NLRB’s own well-established rules and seek to deprive an employer of an adequate opportunity to present their case against unions. These amendments to representation case procedures are a small part of a larger initiative by the NLRB to reform election procedures to favor labor unions in elections. More drastic changes to election procedures are sure to come later this year.

If you have any specific questions or would like more detailed information regarding the NLRB’s amendments to representation case procedures, please do not hesitate to contact our experienced labor attorneys, Nick Nykulak or Alan Ross.

Ross, Brittain & Schonberg Co., L.P.A.

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