In anticipation of the April 30, 2012 implementation date for the new National Labor Relations Board representation election rule, the Board’s Office of the General Counsel has issued guidance (pdf) on the representation case procedure changes. The Board has also released a set of frequently asked questions (FAQs) on the impact of the new election procedures. As discussed in the Board guidance, the new election rule makes the following changes to existing practices:
- Stipulates that the statutory purpose of a pre-election hearing is to determine if a question concerning representation exists;
- Clarifies 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;
- Gives 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;
- Defers most requests for Board review—with the exception of special permission to appeal—until after the election;
- Eliminates the recommendation that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election;
- Clarifies and narrows the circumstances under which a request for special permission to appeal to the Board will be granted; and
- Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides that Board review of regional directors’ resolution of such disputes is discretionary.
To this end, the guidance memorandum sent to all regional directors and officers discusses in detail how representation cases will be processed from start to finish. These stages include the initial processing of the petition, the hearing, pre-election decisions, election preparations and elections, post-election procedures and decisions, and election certifications. The memorandum describes the limited scope of issues that the Board considers appropriate for consideration at a pre-election hearing as well as issues that may be deferred for post-election determination. Overall, hearing officers will be given a fair amount of discretion to limit the issues and evidence that can be presented and resolved pre-election in order to expedite the election process.
With respect to the role of the hearing officer pursuant to the rule revisions, the memorandum states that:
The hearing officer’s role is to ensure a complete record as to issues relevant to the existence of a question concerning representation. It is also to prevent the introduction of evidence on individual eligibility and inclusion issues that are not needed to determine if a question concerning representation exists—unless the regional director decides to exercise discretion to decide the issue before the election.
The revised rule provides that disputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit “ordinarily” need not be litigated or resolved before an election is conducted. The revised rule does not define “ordinarily” or otherwise specify the percent of unit employees whose unresolved voting eligibility is substantial enough to warrant pre-election litigation. According to the guidance, “more specific proposals on this point remain under consideration by the Board, but the rule going into effect on April 30 simply grant discretion in this area to the regional director.”
The memorandum also covers the burden of proof for unit determinations in light of the Specialty Healthcare decision. In that case, the Board stated that it would first assess whether the petitioned-for unit employees are “readily identifiable as a group (based on job classifications, departments, functions, work locations, skills or similar factors),” and would then apply traditional community-of-interest principles to determine if the petitioned-for unit is appropriate. If the petitioned-for unit satisfies that standard, the burden is on the employer to demonstrate that the additional employees it seeks to include share “an overwhelming community of interest with the petitioned-for employees,” such that there “is no legitimate basis upon which to exclude certain employees from” the larger unit because the traditional community-of-interest factors “overlap almost completely.”
The Q&A document released in conjunction with the guidance memorandum responds to 22 related questions. For example, the document clarifies that the rule will apply only to those cases filed on or after April 30, 2012.
In response to a question about election timeframes, the document states that the revised rule does not set a firm deadline for holding pre-election hearings, but that:
most Regions issue the Notice of Representation Hearing (NOH) on the day the petition is filed and schedule the initial hearing for 7 to 10 days after the petition is filed. In the interest of having uniform and predictable representation case processes throughout the field, the Acting General Counsel has adopted the practice of some regions to normally issue the NOH on the day the petition is filed, and schedule the hearing 7 days (or 5 working days) from the date of issuance of the NOH.
As for requests for hearing postponement, the Q&A document emphasizes that such requests for a date more than 14 days after the filing of the NOH “will normally not be granted absent extraordinary circumstances.”
With respect to the types of issues that may be litigated in a pre-election hearing, the guidance explains that such issues include those affecting jurisdiction, labor organization status, scope of and appropriateness of the unit, and bars to an election.
In assessing the appropriateness of a bargaining unit, the Q&A document explains that:
if you decline to take a position on a presumptively appropriate unit, you may be precluded from presenting evidence relevant to the determination of an appropriate unit. If the unit is not presumptively appropriate, the record will have to contain sufficient evidence to establish whether the petitioned unit is appropriate.
The guidance covers a number of other issues related to the appropriateness of a bargaining unit. Generally, the revised rule states that disputes over eligibility to vote or inclusion in an appropriate unit “ordinarily” need not be litigated or resolved before an election is conducted. The Q&A notes that the rule:
did not define “ordinarily” or otherwise specify the number of eligibility issues substantial enough to warrant pre-election litigation. The Acting General Counsel has decided to use the current guideline that applies to negotiated stipulation agreements and gives regional directors discretion to defer the resolution of up to 10% of the unit to the post-election stage. Regional directors will continue to have discretion to exceed that 10% threshold, where appropriate.
The document states further that under certain circumstances the regional director may allow litigation over eligibility or inclusion issues even if the number of employees affected is less than 10% of the unit. If the number exceeds the 10% threshold, however, these issues would ordinarily be addressed at the pre-election stage.
With respect to the post-hearing process, the Q&A document notes that parties are permitted to file post-election briefs “only by special permission of the hearing officer, who will make that decision in consultation with regional management.”
A more detailed discussion of the election process changes in general, and the NLRB guidance in particular, will be forthcoming.