Acting to reduce “unnecessary litigation” and streamline pre-election procedures, the National Labor Relations Board issued controversial, amended regulations late last year effecting major changes to its handling of representation cases. On April 26, 2012, NLRB Acting General Counsel Lafe E. Solomon issued a guidance memorandum that outlines and expands on those regulations, which were adopted in December 2011 and just took effect on April 30.
Providing additional guidance, the NLRB also has posted on its website a set of Frequently Asked Questions concerning the new “R Case” procedures.
The amended regulations will apply to all representation case petitions filed with the agency on or after April 30, 2012, and make the following changes to previously established procedures:
- Amend Board regulations to state that pre-election hearings are held to determine whether a “question concerning representation” exists—the threshold issue in a petition filing—and not to determine collateral issues such as voter eligibility or inclusion in an appropriate bargaining unit, which “ordinarily” can be resolved after an election
- Give NLRB hearing officers the express authority to limit the evidence presented in pre-election hearings to genuine issues of fact material to the existence of a question concerning representation and to exclude all other evidence
- Give hearing officers discretion over whether and when post-hearing briefs may be filed, as well as what issues may be addressed in those briefs
- Eliminate parties’ right to seek Board review of most Regional Directors’ pre-election rulings, while allowing parties to seek post-election review
- Eliminate language in the NLRB’s current statement of procedure that recommends a Regional Director not schedule balloting within 25 days of directing an election
- Amend the Board’s rules to provide that requests for special permission to appeal a Regional Director’s pre-election ruling will be granted only in “extraordinary circumstances”
- Amend Board rules to make NLRB review of election objections and challenges in stipulated and directed election cases discretionary
Although the new regulations do not mandate new timeframes for conducting hearings and/or elections, the Acting GC’s guidance memorandum does. Specifically, the memorandum states that pre-election hearings should be held within seven days (five business days) after the Notice or Representation Hearing is issued. (The Notice generally is issued on the date the petition seeking an election is filed.) In addition, the memorandum expressly permits a union or petitioner waiver of the 10-day period employers have to provide the Excelsior (voter eligibility) list.