On June 21, 2011, the National Labor Relations Board, Member Hayes dissenting, proposed reforms of the procedures it follows prior and subsequent to conducting a secret ballot election to determine if employees wish to be represented for purposes of collective bargaining. The proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.
The Board has periodically reviewed and revised its procedures in representation cases in order to efficiently carry out its duties under the National Labor Relations Act. Since the NLRA was enacted in 1935, the Board has amended its representation case rules at least three dozen times, often in substantial ways. The proposed reforms represent the Board’s latest effort to improve its service to the public.
At a Nov. 30, 2011 open meeting, the Board voted in favor of a resolution to draft a final rule containing a subset of the proposed amendments, while setting aside the remainder for further deliberation. Click here for more information.
The Board invited comments on the proposal in two ways: through a public Board hearing held on July 18 and 19; and through a 60-day period for written comments, with 14 days for replies, submitted electronically through https://www.regulations.gov/ or by mail to the Board’s Washington D.C. headquarters.
Content of original proposed rule
Representation cases are initiated by employees, labor organizations and employers petitioning the National Labor Relations Board to conduct secret ballot elections to determine if employees wish to be represented for purposes of collective bargaining with their employer. The Board investigates such petitions to determine if a question of representation exists and, if so, conducts secret ballot elections in order to answer the question. In cases where parties do not agree on terms of the election, the Board’s regional offices will conduct a pre-election hearing in order to determine if a question of representation exists, supervise the election, and, if necessary, conduct a post-election hearing to resolve challenges to voters or objections to the conduct of the election or conduct affecting the results of the election. Parties currently can seek Board review of Regional determinations both pre- and post-election.
The proposed amendments are designed to fix flaws in the Board’s current procedures that build in unnecessary delays, allow wasteful litigation, and fail to take advantage of modern communication technologies. The following table provides a side-by-side comparison:
Parties or the Board cannot electronically file or transmit important representation case documents, including election petitions.
Election petitions, election notices, and voter lists could be transmitted electronically. NLRB regional offices could deliver notices and documents electronically rather than by mail, and could directly notify employees by email, when addresses are available.
The parties receive little compliance assistance.
Along with a copy of the petition, parties would receive a description of NLRB representation case procedures, with rights and obligations, as well as a ‘statement of position form’, which will help parties to identify the issues they may want to raise at the pre-election hearing. The Regional Director may permit parties to complete the form at the hearing with the assistance of the hearing officer.
The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region.
The Regional Director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.)
In contrast to federal court rules, the Board’s current procedures have no mechanism for quickly identifying what issues are in dispute to avoid wasteful litigation and encourage agreements.
The parties would be required to state their positions no later than the start of the hearing, before any other evidence is accepted. The proposed amendments would ensure that hearings are limited to resolving genuine disputes.
Encourages pre-election litigation over voter-eligibility issues that need not be resolved in order to determine if an election is necessary and that may not affect the outcome of the election and thus ultimately may not need to be resolved.
The parties could choose not to raise such issues at the pre-election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20 per cent of the bargaining unit would be deferred until after the election.
A list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election.
The non-petitioning party would produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing.
The parties may request Board review of the Regional Director’s pre-election rulings before the election, and they waive their right to seek review if they do not do so.
The parties would be permitted to seek review of all Regional Director rulings through a single, post-election request.
Elections routinely are delayed 25-30 days to allow parties to seek Board review of Regional Director rulings even though such requests are rarely filed, even more rarely granted, and almost never result in a stay of the election.
The pre-election request for review would be eliminated, along with the unnecessary delay.
The Board itself is required to decide most post-election disputes.
The Board would have discretion to deny review of post-election rulings -- the same discretion now exercised concerning pre-election rulings -- permitting career Regional Directors to make prompt and final decision in most cases.
The final voter list available to all parties contains only names and home addresses, which does not permit all parties to utilize modern technology to communicate with voters.
Phone numbers and email addresses (when available) would be included on the final voter list.
Deadlines are based on outdated technology, for example, allowing seven days after the direction of election for the employer to prepare and file a paper list of eligible voters.
The final voter list would be produced in electronic form when possible, and the deadline would be shortened to two work days.
Representation case procedures are described in three different parts of the regulations, leading to redundancy and potential confusion.
Representation case procedures are consolidated into a single part of the regulations.
Links and Documents
Read the main steps in the process under the proposed amendments
Read the proposed amendments in the Federal Register
Read the proposed amendments in red-line track changes format
Submit comments through Regulations.gov (Closed)
Read a statement by Chairman Wilma B. Liebman
Read the dissent by Member Brian Hayes
Read the Board's response to the dissent
See a flow chart of current election procedures
View NLRB election data and charts