NLRB election process changes

Defining the scope of the pre-election hearing

Most parties to NLRB elections agree to the election terms. When they can’t agree, the NLRB conducts a pre-election hearing to determine whether an election should be held. A pre-election hearing is required in all cases where the parties have not entered into an election agreement, but a full scale “evidentiary hearing” is not required in every case, only “an appropriate hearing.” There may be times when there are no disputes which must be resolved and, therefore, an appropriate hearing does not require the introduction of extensive evidence.

This amendment alters Section 102.64 of the National Labor Relations Act (NLRA) rules to explicitly state that the purpose of the hearing is to determine whether a question of representation exists, and amends Section 102.66(a) to give the hearing officer the discretion to limit the hearing to relevant matters. The Board’s revised rules make clear that hearing officers, in consultation with regional management, should exercise their authority to limit the presentation of evidence to matters which are both relevant to a question concerning representation and about which the parties have taken a position. Issues affecting jurisdiction, labor organization status, scope of and appropriateness of the unit, and bars to an election will be litigated in the pre-election hearing.

Under the Board’s revised rules, disputes over eligibility to vote or inclusion in an appropriate unit “ordinarily” need not be litigated or resolved before an election is conducted. The rules did not define “ordinarily” or otherwise specify the number of eligibility issues substantial enough to warrant pre-election litigation. NLRB 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 percent of the unit to the post-election stage. Regional directors will continue to have discretion to exceed that 10 percent threshold, where appropriate.

Some eligibility or inclusion issues cannot be deferred to the post-election stage, even if the number of individuals in dispute is small, the NLRB has stated. For example, if a party contends that individuals included in an otherwise appropriate unit are professional employees, that issue must be resolved before the election because professional employees must be given an opportunity to decide whether to be included in a non-professional unit, through a special balloting procedure during the election.

Limiting post-hearing briefs

The second amendment alters Section 102.66(d) of the rules to give hearing officers the discretion to control the filing, subject matter, and timing of any post-hearing briefs. This amendment was adopted, according to the Board, because most cases involve only routine issues based on well-known principles of NLRA law. Briefing adds little to the decision-making process, but introduces further delay and adds significantly to the parties’ litigation expenses, the NLRB stated.

Consolidating pre- and post-election appeals

The third amendment alters Sections 102.67 and 102.69 to eliminate the need to file multiple appeals. This amendment consolidates the appeals into a single post-election procedure, which saves the parties from having to file and brief appeals that may become moot based on the outcome of the election. This change also conforms NLRB procedures with the ordinary rules found in both state and federal courts which limit interlocutory appeals.

Eliminating the 25-day waiting period

The fourth amendment follows directly from the third by removing the 25-day waiting period after a regional director’s pre-election decision issues. Because the new rules eliminate pre-election appeals, the waiting period no longer serves any purpose, according to the NLRB.

Establishing a standard for interlocutory appeals

The fifth amendment also takes aim at the issue of multiple appeals to the Board in a single case. By altering Section 102.65(c), the new rules make clear that the Board will grant interlocutory appeals concerning individual rulings by hearing officers or regional directors only under "extraordinary circumstances where it appears that the issue will otherwise evade review."

If a hearing officer makes an obvious mistake in his or her ruling regarding critical evidence at the hearing, the parties have the right to request special permission to appeal from that ruling to the regional director.

The hearing officer’s rulings will be reviewed by the regional director and ultimately, the Board, if a request for review is granted, regardless of whether or not a pre-election request for special permission to appeal has been filed with the regional director or Board.

If the Board grants a request for special permission to appeal a ruling of the hearing to the regional director, the election might not necessarily be postponed or the ballots be impounded. Parties may request this, but special appeals will not automatically stay the election or require ballots to be impounded unless specifically so ordered by Board.

Establishing standards for post-election procedures

The amendment to Sections 102.62(b) and 102.69 codifies what the Board states is a long-established practice in which regional directors decide challenges and objections to elections through an investigation without a hearing when there are no substantial or material factual issues in dispute. The amendment also makes Board review of the regional directors’ decisions discretionary. This change requires parties to identify significant prejudicial error by the regional director or some other compelling reason for Board review.

In its original notice of proposed rulemaking, the NLRB proposed many other amendments that, among other things, would have standardized deadlines across the country and allowed for the electronic filing of petitions. The Board set those portions of the proposal aside for possible future consideration.