The National Labor Relations Board (NLRB) continues its agenda of administrative labor law reform that Congress failed to pass when efforts to enact the Employee Free Choice Act (EFCA) were unsuccessful.    In recognition of the fact that Member Becker’s recess appointment is to expire on December 31, 2011, reducing the Board to only two members, rendering it unable to act due to a lack of a quorum,  the two Democratic appointees have voted to adopt new rules that will speed up the election process.  The part of the overall rule proposal adopted yesterday provides:

  • The National Labor Relations Act provides for a pre-election hearing to determine whether there exists a “question of representation” to be resolved by an election. Currently, parties can raise issues at the hearing that are not relevant to that question, which can result in unnecessary, expensive, and time-consuming litigation for the Board and all parties. The first proposed amendment gives the hearing officer authority to limit the hearing to matters relevant to the question of whether an election should be held.
     
  • Most cases involve only routine issues based on well-known principles of Board law. In such cases, regional directors can reach a fair and sound decision based on the record from pre-election hearing, including closing arguments. Parties may currently file briefs after the hearing, but the briefing adds nothing to the regions’ decision-making process in such routine cases and substantially increases the parties’ litigation costs. The second proposed amendment authorizes the hearing officer to decide whether to permit briefing depending on whether the case presents issues that would benefit from it.
     
  • The Board’s current rules require parties to file two separate appeals to seek Board review of pre-election issues and issues concerning the conduct of the election, respectively. Appeals concerning pre-election issues must be filed before the election, and are often subsequently mooted by the results of the election. The third amendment reduces unnecessary litigation by consolidating the two appeals into a single post-election procedure and by avoiding altogether appeals of issues that become moot as a result of the election.
     
  • The fourth amendment follows directly from the third, by ending the practice of delaying the scheduling of elections to permit time for a pre-election appeal. (In any event, even under the current rules, the delay does not serve its stated purpose because the Board typically permits the election to be conducted and directs that the ballots be impounded while it considers the appeal.)
     
  • In keeping with the effort to avoid multiple appeals in a single case, the fifth amendment would narrow the circumstances in which a request for special permission to appeal to the Board would be granted. Such permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review. (Board review would remain available following the election on all issues for which permission to appeal was denied or not sought.)
     
  • The sixth amendment would simplify appeal procedures and avoid litigation of appeals that do not present a serious issue for review. It would do this by giving the Board discretion to hear and decide any appeals to the election process, whether they concern pre-election or post-election issues. 

 

     What this means to employers is that the time between the filing of the petition and the holding of the election will be substantially reduced.   Employers wishing to remain union free will have to be proactive.   Supervisors and management should be trained to recognize early warning signals of possible union activity and be  equipped  with information as to what they can and cannot do in such circumstances.  Work rules and policies need to be reviewed for legality and implemented before the union comes knocking.

     The current Board’s labor law reform has occurred through issuance of decisions in unfair labor practice cases that overrule employer-friendly precedent in favor of labor unions, aggressive use of discretionary injunctive procedures, enhanced remedial measures, and controversial rule-making efforts such as the new quickie election rules and the notice posting rule that was adopted earlier this year.

For more information or any questions concerning labor law or related issues, please contact Bill Trumpeter at 423-785-8318

The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.  Should you need assistance, please call 1-800-275-7303.ext 318.

 

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