NLRB Issues Final Rule Hastening Union Elections

Written by Robert G. Brody and Rebecca Goldberg on January 18, 2012

Big changes are coming to union elections.  The National Labor Relations Board issued its final rule, designed to promote efficiency by making major changes to how employees elect representatives.  In other words, rather than 42 days to prepare for a union election, employers may only have a few weeks.  The new rules will limit an employer’s opportunity to make their views known and employees of the opportunity to make an informed decision.

There are seven substantive changes:

  • A pre-election hearing is only “to determine if a question of representation exists” and thus related issues should be handled post election;
  • Pre-election Hearing Officers have the authority to limit evidence about voter eligibility and inclusion;
  • Pre-election Hearing Officers have discretion over what post-hearing briefs can be filed;
  • Eliminates the recommendation that the Regional Directors should ordinarily not schedule an election sooner than 25 days after the decision and direction of election, which provided the Board an opportunity to rule on a pre-election request for review before the election;
  • Narrows the circumstances under which special permission to appeal to the Board will be granted; and
  • Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides the Board has discretion as to whether to review any remaining post-election disputes.

On their face, the new rules merely limit the issues that can be resolved pre-election.  In fact, this streamlining will seriously limit employers’ opportunity to explain the downsides to unionizing because most elections will occur within two to three weeks of a petition being filed.  However, unions will continue to have as much time as they want to campaign before requesting an election.  This is the true unevenness of this labor playing field.

Legislative and judicial challenges to the new rule are underway.  At least three lawsuits were filed in December.  They are being consolidated into one case.  The House of Representatives passed the Workplace Democracy and Fairness Act, which would require a 35-day period between the filing of an election petition and the representation election.  It would also require a two-week waiting period before a hearing on the petition could be held.  Senator Mike Enzi is threatening to overturn these rules by filing a challenge under the Congressional Review Act.  If all these challenges fail, the rule will go into effect on April 30, 2012.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More