NLRB adopts amendments aimed at reducing opportunities for manipulation of the representation procedures

On December 22, 2011, the National Labor Relations Board (NLRB) issued a Final Rule of Election Procedures that will change procedures for private sector union representation elections, effective April 30, 2012. The Rule is aimed at simplifying election procedures in order to reduce opportunities for manipulation of the representation procedures that currently allow employers to gain unfair advantage and serve to discourage workers’ free choice.

Currently, where a dispute exists prior to a representation election, the issue is presented to an NLRB regional director in a pre-election hearing. Under the new Rule, these regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. Hearing officers will have the authority to limit testimony to relevant issues and will have discretion over whether post-hearing briefs may be filed.

All appeals of hearing officer decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process. The new Rule also makes all Board review of these decisions discretionary. These changes allow representation cases to be resolved more expeditiously, efficiently, and uniformly.

NLRB election cases that have gone through the pre-hearing process delays the election by an average of 101 days after the election petition was filed with a regional office. According to Chairman Mark Gaston Pearce, the new Rule “is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation.”