On June 21, 2011, the National Labor Relations Board (Board) proposed amendments to its existing rules and regulations governing procedures in union representation cases. According to the Board, the proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.
Specifically, the proposed amendments would:
- Allow for electronic filing of election petitions and other documents;
- Ensure that parties receive and exchange information related to the representation case process in a timely manner;
- Standardize timeframes for pre-election hearings (seven days after service of hearing notice) and post-election hearings (14 days after the tally of ballots);
- Require parties to identify issues and describe supporting evidence within seven days after an election petition is filed;
- Defer litigation of most voter eligibility issues until after the election;
- Require employers to provide a final voter list with employee phone numbers and e-mail addresses in electronic form within two days of the direction of election;
- Consolidate all election-related appeals to the Board into a single post-election appeals process; and
- Make Board review of post-election decisions discretionary rather than mandatory.
If adopted, the proposed amendments would expedite the pre-election process and limit the post-election process and, thus, significantly impede an employer's right to communicate with its employees and to petition the government for redress. The proposed amendments will be published in the Federal Register on June 22, 2011, and available for public comment.
In his dissent, Board Member Brian Hayes stated that the Board has been consistently meeting its performance goals under the current process, under which less than 10 percent involve pre-election issues. Hayes stated, "By administrative fiat in lieu of Congressional action, the Board will impose organized labor's much sought-after 'quickie election' option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining."