On November 30, the National Labor Relations Board (NLRB or the Board) voted 2-1 in favor of changing union election proceedings by adopting some of the changes from a previously issued proposed rule. The changes shorten the time from the filing of the union election petition until the actual vote is held, potentially reducing the time employers have to communicate with employees before they vote. The Board was compelled to vote on the proposed rule “in light of the possibility that the Board will lose a quorum at the end of the current congressional session.” It is expected to issue the new final rule prior to the expiration of Board Member Becker’s recess appointment.
The vote was on a modified final rule, not the entire rule as published in the June 22 issue of the Federal Register. The NLRB made clear, however, that the balance of the published rule “will remain under consideration” for possible future action. Chairman Mark Pearce and Member Craig Becker voted in favor of the new rule, while Member Brian Hayes voted against it. The NLRB will now prepare a final rule making the following changes to current election procedures:
– Elimination of current procedures providing for pre-election appeals to the Board from the actions of the Regional Director on the election petition. The rule now only allows for a single, discretionary appeal of pre-election and post-election issues after the votes are cast. An appeal to the Board prior to the election is expressly limited to issues that would otherwise escape Board review entirely if not raised at that time.
– Elimination of the current requirement that a vote cannot be held sooner than 25 days after the Board’s Regional Director issues a Direction of Election. As a practical matter, this means that elections will be held sooner than was previously the case, although the precise length of time may vary.
– Clarification that a pre-election hearing is to determine only whether a question concerning representation exists. Hearing officers will have authority to limit evidence taken at the hearing that is not relevant to that issue. This means that many issues of individual voter eligibility as opposed to voting unit composition may be deferred to the post-election procedures rather than litigated prior to the vote.