NLRB Changes Certification Election Case Procedures


The National Labor Relations Board (NLRB) has adopted a final rule amending its election case procedures.  The final rule published in the Federal Register on December 22, 2011primarily focuses on procedures followed by the NLRB in the minority of cases in which parties can’t agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB Regional Director decides the question and sets the election.

Scheduled to take effect April 30, 2012, the new final rule Final Rule on Election Procedures seeks to reduce litigation.  Among other things, the Final Rule:

  • Amends § 102.64 to expressly construe Section 9(c) of the Act and to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists;
  • Amends § 102.66(a) and eliminate § 101.20(c) (along with all of Part 101, Subpart C) to ensure 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;
  • Amends § 102.66(d) to afford hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the subjects to be addressed and the time for filing;
  • Amends §§ 102.67 and 102.69 to eliminate the parties’ right to file a pre-election request for review of a regional director’s decision and direction of election, and instead to defer all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings;
  • Eliminates the recommendation in § 101.21(d) (as stated, along with all of Part 101, Subpart C) 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;
  • Amends § 102.65 to make explicit and narrow the circumstances under which a request for special permission to appeal to the Board will be granted;
  • Amends §§ 102.62(b) and 102.69 to create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and to provide that Board review of regional directors’ resolution of such disputes is discretionary; and
  • Eliminates part 101, subpart C of Board regulations and makes other conforming amendments.

According to the NLRB, the changes in the Final Rule will ensure that going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.

Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.

In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.

Click here to read the Final Rule.

The Final Rule annoucnement was followed by the NLRB’s announcement that it is delaying the deadline for employers to comply with its employee rights notice-posting rule until April 30, 2012.  However the extension does little to relieve employers from the wave of added regulatory and enforcement guidance including new social networking guidance issued coincident with the extension announcement.

While the poster requirement is delayed, the NLRB continues to pursue an active regulatory and enforcement agenda.  See, e.g., Employers Face New Labor-Management Exposures Under Activist National Labor Relations Board.  Employers should continue to strengthen their labor-management policies and practices to mitigate the growing labor exposures that result from this activist agenda.  In fact, the NLRB accompanied its extension anouncement by sharing new guidance about its position on labor law restrictions on employer regulation of social networking and other communications.
For Help or More Information
If you need help with labor managmeent relations or other human resources or internal controls matters, please contact the author of this article, Cynthia Marcotte Stamer.
Board Certified in Labor & employment Law by the Texas Board of Legal Specialization, ,management attorney and consultant  Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

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[1] WHD’s announcement of the planned rule notes that this draft shared December 15 remains subject to change before formally published in the Federal Register.

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