As anticipated, the new election regulations adopted by the Board shortly before the holidays are set to go into effect as planned on April 30, 2012. In anticipation of this event, Acting General Counsel Lafe Solomon issued GC 12_04 Guidance Memorandum on Representation Case Procedure Changes.pdf, a 24 page guidance to the Regional Offices on how to implement the Final NLRB Election Rules.pdf. The Acting General Counsel noted that "[o]ver the course of its history the Board has, from time to time modified its representation procedures to increase efficiency, prevent parties from abusing the process, and eliminate unnecessary delay in the resolution of questions of representation."
Despite this lofty goal, it seems that, as with virtually everything the Board does these days, the Guidance Memorandum is much more likely to raise more questions than it will answer. It certainly will remain controversial.
The main question is: do the new rules change the timeframes for holding elections?
The answer is yes, but only if the employer contests the petitioned-for unit.
The Guidance Memorandum states, "The final rule does not establish new timeframes for conducting hearings or elections." This is sort of accurate. The new regulations do not alter the timing of representation elections where the parties agree on the voting unit and the election is held by Stipulated Election Agreement.
The new regulations, however, absolutely alter the timeframes for conducting elections if the employer contests the petitioned-for unit. If the employer decides it does not agree with the unit sought by the union, then the new regulations empower the Regional Director to curtail all aspects of bargaining unit litigation, the only point of which is to shorten the timeframe. The Guideline Memorandum notes the new regulations allow the regions to:
- Issue a notice to show cause, which "elicits the functional equivalent of an offer of proof, and permits the regional director to determine whether to conduct a hearing and the regional director and hearing officer to plan for permitting or precluding litigation on certain or possibly all issues." p. 17. In other words, the employer will have to convince the Regional Director that its proof is worthy of a hearing but the discretion remains with the Regional Director.
- Post-hearing briefs. The Guidance Memorandum notes the "revised rules give the hearing officer discretion related to the filing and content of post-hearing briefs to regional directors..." and "The hearing officer should consult with regional management before determining whether to permit briefs." p. 17. The regulations give the Regional Director power to determine whether he or she will consider written legal arguments related to the hearing (if he or she grants a hearing).
- Timing of election after decision. Curiously, the Guidance Memorandum states, "As soon as possible after issuance of a regional director's Decision and Direction of Election, the decision should be emailed or faxed tot he parties so that they have an opportunity to revise (or state) their position on the method, date, time and place of the election. The Board agent will attempt to reach the parties as expeditiously as possible to obtain agreement before the region specifies the method, date, time and place of the election." P. 21.
All of this still leaves unanswered the question of how soon after the decision will the election be held. We do know, although it is mentioned elsewhere in the Guideline Memorandum, that Section "101.21(d) [of the regulations] is amended to eliminate the recommendation...that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review." P. 3. So, an employer gives up the possibility of having at least 25 days in which to communicate with its employees in a campaign if it contests the voting unit.
But how much sooner than 25 days? No one knows the answer definitively, but employers should consider this passage in the Guidance Memorandum:
As the Board acknowledged in its Notice of Proposed Rulemaking (NPRM)....a party may waive its right to have the voter eligibility list for 10 days....A new waiver form has been created for that purpose which permits waiving all or part of the the 10-day period.
What this means is that if an employer contests the unit, the election possibly could be directed in as little as a week after the decision. How? The Board requires the voter eligibility list (the list of employees entitled to vote) to be provided 7 days after a decision is made by the Regional Director on a unit issue. Ordinarily, the union must be given 10 days to consider the list, which would put an election at 17 days after decision. Under the Guideline Memorandum, the Acting General Counsel points out that it is possible for the union to waive "all or part" of the 10 days.
Unions do not usually waive the 10 day period, but we are likely to see this happen more frequently in contested unit cases (and perhaps even uncontested cases) after the new regulations go into effect. This is because after the Board's decision in Specialty Healthcare, which we previously addressed here, here and here, the Board's new standard for determining the appropriateness of a bargaining unit incentivizes unions to petition for the smallest grouping of employees. A smaller group of employees is more likely to be known by the union, and such knowledge makes having the voter eligibility list for a period of time less relevant.
In sum, the new regulations greatly inhibit an employer's ability to contest a unit grouping by forcing an election in much shorter timeframe.