On April 26, National Labor Relations Board (NLRB or Board) Acting General Counsel Lafe Solomon issued a guidance memo outlining in detail how Regional offices will implement new representation case procedures that take effect on Monday, April 30. The guidance covers the entire representation case process from beginning to end, incorporating the new rules and the procedures that remain unchanged. Click here to view the General Counsel’s guidance memo.
The General Counsel’s office also issued a set of Frequently Asked Questions explaining the Board’s revised rules and the procedures that will be followed by regions in implementing those rules.
The Board voted in December to adopt several previously proposed rule amendments and the new procedures will apply to all representation cases filed on or after April 30. According to the NLRB, “the changes primarily affect pre- and post-election legal procedures in the relatively few elections—currently about 10%—in which parties can’t agree on issues such as the appropriateness of the voting unit.” The new procedures consolidate some legal appeals available during the proceeding and limit the introduction of evidence at hearings to issues that directly address the question of whether an election should be held. The General Counsel’s memo asserts that the final rules are intended to conserve time and resources for the NRLB and parties participating in representation proceedings, achieving these objectives by:
- Focusing pre-election hearings on those issues relevant to determining if there is a question concerning representation;
- Providing for post-hearing briefs after pre-election hearings only when it will assist decision makers;
- Reducing piecemeal appeals to the Board by consolidating requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request; and
- Making the Board review of post-election regional determinations discretionary.
The NLRB guidance memo highlights the following changes to the representation rules:
- §102.64 is amended to expressly construe Section 9(c) of the Act to state that the statutory purpose of a pre-election hearing is to determine if a question concerning representation exists.
- §102.66 is amended to clarify that hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation.
- §102.66(d) is amended to afford hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the issues to be addressed and the time for filing, subject to the authority of the regional director.
- §§102.67 and 102.69 are amended to defer most requests for Board review—with the exception of special permission to appeal—until after the election, when any such request can be consolidated with a request for review of any post-election rulings.
- §101.21(d) 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.
- §102.65 is amended to clarify and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.
- §§102.62(b) and 102.69 are amended to create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and to provide that the Board review of regional directors’ resolution of such disputes is discretionary.