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January 25, 2012

NLRB Adopts Amendments to Election Case Procedures

When an employer faces a union organizing campaign, the National Labor Relations Board (“NLRB” or “Board”) often is called upon to hold an election. Recently, the NLRB adopted a final rule amending its election case procedures which will result in a quicker election process. The amendments are an adaption of earlier proposed election regulations put forth by the NLRB in June 2011 and voted to resolution in November 2011. The new rule takes effect on April 30, 2012.


The Board voted 2-1 on November 30, 2011, to authorize regulation changes designed to speed up union elections. The vote went along party lines, with the two Democratic members supporting the change and the lone Republican member, Brian Hayes, dissenting. This resolution led to the adoption of the final rule.

Much of the tension surrounding the divided Board vote was due to its fast approaching lack of quorum. Based upon a 2010 U.S.Supreme Court ruling, a three-member Board is required to form a quorum and take binding action. The two Democrats on the NLRB pressed the matter to vote because Democratic appointee Craig Becker’s appointment expired at the conclusion of 2011, leaving the Board with a two-member panel. There had been speculation that lone Republican member Brian Hayes would resign and not attend the November 30th session. However, Hayes attended and voted against the resolution. The President has since announced recess appointments Sharon Block, Terence F. Flynn, and Richard Griffin to serve as Members of the NLRB and to maintain a quorum on the Board panel. The recess appointments are the subject of political controversy as the NLRB continues to do business.


The Board’s final rule on election procedures contains eight procedural amendments. The first amendment states that the statutory purpose of a pre-election hearing is to determine if a question of representation exists. The second amendment speeds up the representation election process toward a vote by giving the NLRB hearing officer authority to limit a pre-election hearing to matters relevant to the question of whether an election should be held. The third amendment eliminates the right to file a brief after the hearing, and puts briefing in the discretion of the NLRB hearing officer. The fourth amendment scales back the pre-election process and the possibility of a second appeal, by allowing only a single post-election procedure for all requests for Board review. The fifth amendment follows from the fourth by ending the practice of delaying the scheduling of elections to permit time for a pre-election appeal. The sixth amendment narrows the circumstances in which a request for special permission to appeal a pre-election disputed issue to the NLRB would be granted. Such permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal might otherwise evade review. The seventh amendment makes any appeal or Board review of a pre-election or post-election issue discretionary, rather than one an aggrieved employer or union can file as a matter of right. Finally, the eighth amendment eliminates redundant portions of the regulations. The remainder of the amendments merely conform other sections of the Board’s Rules and Regulations to the eight amendments described above.

The NLRB has apparently delayed the more controversial aspects of the so-called “quickie election” rules that had previously been proposed. Among the provisions which remain for later consideration by the NLRB are electronic filing of petitions, setting pre-election hearings seven days after service of the notice of hearing, requiring a pre-election statement of position, including email addresses and phone numbers in the list of eligible voters, and requiring employers to file a list of eligible voters in a period reduced from seven work days to two work days.


On December 29, 2011 the NLRB revised its procedural rules again to suspend the current practice of impounding election ballots in cases where a request for Board review has been granted or has not been ruled upon. In the absence of a three-member quorum, the new revision provides, an NLRB Regional Director will issue an appropriate certification of representative or certification of election results notwithstanding a party’s filing of a request for board review. Once a quorum is restored the Regional Director’s action would be subject to Board review. Again, this revision was approved along party lines, with the two Democrats supporting and the lone Republican voting against.


According to NLRB Chairman Mark Pearce, “[t]he vast majority of the NLRB-supervised elections, about 90%, are held by agreement of the parties - the employees, union and employer - in an average of 38 days from the filing of a petition. The […] amendments would not affect these agreed-to elections. Rather, the amendments would apply to the minority of elections which are held up by needless litigation and disputes which need not be resolved prior to an election. The […] amendments address such unnecessary litigation by (1) limiting subjects that can be raised in pre-election hearing to those that are directly relevant to the election, and (2) postponing any election-related appeals to the Board until after the election.”

Whether litigation is “needless” is a point where employers, unions, and the NLRB are all likely to differ. The rule changes give more speed and leverage to union organizing efforts. They are an invitation for unions to put their faith in the NLRB, a venue unions have increasingly disdained as union membership continues to decline. With NLRB rulings in recent cases giving unions more power to pick and choose a voting unit (i.e. which departments and/or facilities vote), despite management’s objection to the unit’s scope, and a heightened reliance by unions on low-level supervisors to leverage their organizing efforts, the new regulations may not affect all election cases. However, the rules can make it easier for unions to achieve a vote under circumstances where a union is more likely to prevail and management faces greater challenges in explaining its side of the story and the realities facing the business to its employees.

In hotly contested organizing campaigns, where management often seeks time to educate employees on their choice at the ballot box, the new regulations stand to help a lagging labor movement regain momentum and members. Recent case rulings seem to do the same. In a case decided December 22, 2011, the Board split 2-1 on supervisory status of field managers with disciplinary authority in a case involving DirecTV. In DirecTV, the Board decided that an International Association of Machinists district lodge won the right to represent more than 200 digital television service workers despite the involvement of “field supervisors” in the union campaign that preceded an NLRB election.

In the Board’s 2011 3-1 Specialty Healthcare ruling, unions were given greater leeway in picking employee units for elections, over management opposition. In Specialty Healthcare, the Board decided that Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. This decision overruled the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities. Under the new Specialty Healthcare approach, employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied in other workplaces.

In another very recent 2-1 decision, involving Lancaster Symphony Orchestra, the Board found that musicians playing for symphony orchestras were employees, not independent contractors as alleged by management, and therefore eligible to vote on whether they want union representation under the National Labor Relations Act. The Board found that numerous factors weighed heavily in favor of employee status because orchestra management set the musicians’ work hours, payment schedules, dress code, standards of behavior, etc. In stark contrast, the dissenting Republican, applying the same multi-factor analysis as the majority, found the factors to weigh strongly in favor of finding musicians to be independent contractors because they retained discretion to accept or decline to work with the employer and to play elsewhere.

Overall, the new regulations and recent case rulings demonstrate growing opportunities for unions to organize and needs for employers to seek management training on the changing labor environment.


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