Hunton Employment & Labor Perspectives

This afternoon, the National Labor Relations Board ("NLRB") passed a resolution to amend several of its regulations that govern pre-election litigation procedures that will invariably pave the way for quicker elections in representation cases.  The resolution, which was proposed by Board Chairman Mark Pearce, authorizes the Board to issue a final rule that would make a number of procedural changes to its pre-election procedure, including the following:

• To limit pre-election hearings to the issue of whether a genuine question concerning representation exists that would prevent the need for an election (an extremely rare occurrence);
• To authorize the hearing officer in pre-election litigation to refuse to allow parties to file post-hearing briefs;
• To eliminate the parties' right to seek full Board review of regional directors' pre-election rulings and to delay Board review of these issues until after the election (and then, only if they have not been rendered moot by the election result); and 
• To eliminate the portion of the rules that prevents regional directors from scheduling elections until at least 25 days after the direction of an election (this rule existed in order to allow the full Board time to rule on appeals of pre-election litigation, so the elimination of the parties' right to seek full Board review of pre-election rulings renders the 25-day rule moot).

The resolution passed over the strong objection of Member Hayes, the lone Republican on the Board.  Some had speculated that Member Hayes would resign prior to the meeting in order to deprive the Board of the quorum needed to pass Chairman Pearce's proposed resolution.  He did not, and instead attended today's meeting to voice his concern about Chairman Pearce's proposal.  Among other things, Member Hayes described the proposal as a “flawed rule” that was the product of “a flawed process.”  In response, Chairman Pearce described the process as “the most open and most participatory rulemaking process the Board has ever engaged in.”

Passage of the resolution paves the way for more sweeping changes such as electronic voting and requirements that regional directors schedule elections as soon as 10 days after receiving a petition for representation.  These more drastic proposals, while not included in today's resolution, were featured in Chairman Pearce's original rulemaking proposals in June of this year and clearly remain on his agenda.  Indeed, the Board's own Q&A on today's resolution states that the remainder of Chairman Pearce's original proposal is open "for continued consideration by the Board."  

The text of the final rule must still be finalized, and another vote taken, before these proposed changes officially become Board procedure.  Several rounds of negotiation between Member Hayes and the Democratic Board majority are likely, and it is possible that today's resolution will be the subject of a court challenge.  It therefore is unclear when this round of changes will become final.  At a minimum, however, today's vote signals a significant step towards eliminating the procedural safeguards that permit employers to challenge the appropriateness of proposed bargaining units before an election takes place.  It also is a major step in the direction of shrinking the window of time between a union petition and the actual election.  As we have recommended before in this space, employers are well served to consult with their labor counsel and advisors now, to begin making preparations for a labor relations arena in which they may have little to virtually no advance notice of a pending union election and little to no ability to challenge the union's proposed bargaining unit until after the voting has taken place.