Hunton Employment & Labor Perspectives

As we reported earlier, the path appears (at least temporarily) clear for the NLRB’s new “quickie election” rules to take effect.  In anticipation of the effective date, Board General Counsel Lafe Solomon last week issued a memorandum to all regional directors advising them on how to process union election petitions under the new rules.  While it is too early to tell how dramatically the General Counsel’s guidance will alter the labor relations landscape, it is clear from his memorandum that the Board intends to accelerate the current union election timeline as much as possible.

As we reported in previous posts, the Board’s final rule, adopted on December 22, 2011, modifies in several substantial respects the procedures that govern the processing of union election cases.  These include:

•  Limiting pre-election hearings to whether a question concerning representation exists;
• Eliminating a party’s right to file a post-hearing brief and giving a hearing officer discretion whether to allow briefing on any pre-election litigation;
• Requiring that parties consolidate their appeals of pre and post-election issues, which likely substantially limits pre-election appeals of hearing officer determinations;
• Limiting interlocutory appeals to issues involving “extraordinary circumstances;”
• Eliminating the rule that currently prevents regional directors from scheduling an election date any sooner than 25 days after ordering an election;
• Making Board review of post-election disputes discretionary and allowing the Board to reject any appeal that does not present “a serious issue for review.”

Solomon’s memorandum reveals some -- but far from all -- of what the Board may be planning.  For example, the memo suggests that the regions should schedule any necessary pre-election hearing no more than 7 days after a petition is filed.  This is the hearing that the region in all likelihood will cancel if the employer does not present a viable question concerning representation.  It also states a Board agent can dispense with a pre-election hearing if, in his or her judgment, the petitioned-for unit is “presumptively” appropriate under current Board precedent.  Where a hearing must be held, Solomon directs Board agents to allow only evidence on issues that will be decided by the regional director.  Parties will not be allowed to offer evidence on “nonlitigable issues.”  In this regard, evidence on individual eligibility and inclusions issues will not be allowed unless offered to determine whether a question of representation exists.

Solomon’s memorandum suggests that the Board will take whatever steps it deems necessary to eliminate pre-election litigation and employer appeals and speed election petitions forward for a vote.  That said, it remains unclear how these changes will work in practice.  It is still possible that the D.C. Circuit’s planned ruling on May 15th will invalidate some of the Board’s rule changes.  We will monitor closely the Court’s activity as well as the Board’s implementation of the new rules and will be following up in the days and weeks to come with additional commentary on the potential implications of the new rules.