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December 1, 2011

NLRB Approves Proposed Changes to the Union Election Process

As we advised previously advised, on June 21, 2011 the National Labor Relations Board (the “NLRB” or the “Board”) announced a Notice of Proposed Rulemaking proposing several sweeping amendments to the Board’s current rules and regulations on representation elections. (See  On November 30, 2011, the Board approved NLRB Chairman Mark G. Pearce’s resolution, which included a number of these amendments.  These rules will be circulated among Board Members and will undergo a vote on the final language before taking effect.  The Board has indicated that it plans to act on the final language within the next 30 days.

The new rules are designed to substantially change and speed up the union election process, as well as limit employer participation in that process.  These approved amendments include:

  • Authorizing hearing officers in NLRB election cases to limit hearings to matters relevant to the question of whether an election should be held;
  • Authorizing hearing officers in NLRB election cases to decide whether to permit the filing of written briefs following the hearing;
  • Consolidating the two separate appeals processes before the Board, those appeals that seek NLRB review of pre-election issues and those appeals concerning the conduct of the election itself, into a single post-election procedure;
  • Eliminating the practice of delaying the scheduling of elections to permit time for a pre-election appeal;
  • Limiting the circumstances in which a request for special permission to appeal to the Board would be granted (such request would be granted only in those extraordinary circumstances when the issue addressed in the appeal would otherwise evade review); and
  • Providing the Board with the discretion to hear and decide any appeals to the election process, whether they concern pre-election or post-election issues. 

A number of proposals from the June 22, 2011 Notice of Proposed Rulemaking were not included and adopted in the Chairman’s resolution.  Such proposals remain pending and are subject to further consideration by the Board.  The proposals not adopted include, for example, the electronic filing of election petitions; the proposed requirement that any pre-election hearing be held seven days after service of the notice of hearing; and the requirement for employers to provide a final voter list in electronic form that includes telephone number and email addresses (when available), with the deadline to produce this list shortened to two work days.
The same day the Board approved the election procedure the U.S. House of Representatives passed the “Workforce Democracy and Fairness Act.” (H.R.3094).  Among other things, the Act would overturn a number of the Board’s proposed changes to the representation election procedures. 

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We will keep you apprised of developments regarding the NLRB’s adopted rules and the Workforce Democracy and Fairness Act.  If you should have any questions regarding the Board’s rules, please contact us.