On June 22, 2011, the NLRB issued a notice of proposed rulemaking to amend its rules when processing a union election petition. (See 76 F.R. 36812). According to the notice, the proposal “would simplify representation case procedures and render them more transparent and uniform cross regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request.”

The following are some of the proposed changes:

  • When a union files an election petition, it also must serve the petition on the employer and certify that it has the required “showing of interest” in authorization cards or on a petition from the targeted employees.
  • At the representation hearing, the parties must submit a new Statement of Position form. Any issues not contained on the form would not be considered at the hearing.
  • With its Statement of Position form, the employer must include a list (without contact information) of all the employees in the petitioned-for bargaining unit, as well as its own list of employees if it contends a different unit is more appropriate.
  • If the hearing officer finds that the parties are arguing about a group of employees that makes up 20 percent or less of the possible voters, the hearing will be closed and the issue can be taken up after the election.
  • The pre-election request for NLRB review of the regional director’s decision is eliminated, along with the current 25-day period between the direction of election and the actual election.
  • Once an election has been directed, the employer must provide the Excelsior voter eligibility list electronically to both the NLRB and the union within two days, as opposed to the current seven days. The list must contain the name, addresses, work location, shift, and classification for each employee eligible to vote, along with his or her phone number and email address (if available).  

Bryan Hayes, the sole Republican on the NLRB, dissented from the proposed rule changes, claiming that there was no need to conduct representation elections more rapidly. Mr. Hayes predicted that the proposed amendments would substantially shorten the time between the filing of the election petition and the election date and would limit the opportunity for a full evidentiary hearing or NLRB review on important issues. Mr. Hayes wrote, “the Board will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held 10 to 21 days from the filing of the petition.” Mr. Hayes was referring to a key aspect of the proposed Employee Free Choice Act that Congress is now unlikely to pass.

The NLRB is accepting public comments on the proposed rule changes until August 22, 2011, at http://www.regulations.gov, and it also intends to hold a public hearing on the proposal on July 18 and 19, 2011, in Washington, D.C. More information on the proposal is available at http://www.nlrb.gov/node/525.