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Dec 8 2011

Update: NLRB's Proposed Expedited Election Procedures | Employment Law

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By: Nathaniel G. Lambright and Christopher P. Getaz


On November 30, 2011, the National Labor Relations Board voted to approve a resolution by the Board’s Chairman, Mark G. Pearce, for new rules to expedite election cases. Many employers and conservative pressure groups reacted to the initial proposal and the recent vote with vitriol and calls for the one Republican member, Brian Hayes, to resign from his post. After Member Hayes threatened to resign, the Board’s Inspector General launched an investigation into whether Member Hayes was unduly influenced to issue his threat. As gridlock grinds governmental functions in DC to a near standstill, it is important to sweep the rhetoric aside and determine what Chairman Pearce’s resolution really means for future election cases.

The resolution focused on six procedural amendments, taken from a larger batch of proposed amendments that will: (1) limit the subjects that can be raised in a pre-election hearing to those related to the election, and (2) postpone any election-related appeals to the Board until after the election. Specifically, the amendments:

  • Give the hearing officer authority to limit the scope of the hearing to issues concerning whether an election should be held. Currently, parties can raise issues that are irrelevant to the election, which wastes time and money;
  • Give the hearing officer authority to allow post-hearing briefs. The Board reasoned that because many of the issues that arise during an election campaign have been addressed by existing Board precedent, there is little need for post-hearing briefs. Post-hearing briefs, however, provide more than just explanations of the law. They provide the hearing officer with the information necessary to decide a case;
  • Consolidate two appeals (one concerning pre-election issues and the other concerning election conduct issues) into a single post-election procedure;
  • Ensure the election will continue without delay while the appeal is pending;
  • Narrow the circumstances for granting a special appeal to the Board; and
  • Give the Board discretion to hear and decide appeals to the election process.

The Board has estimated that these amendments will affect roughly ten percent of the election cases it supervises. Those cases are generally the most contentious. By clearing the hurdles employers use to slow down the election process, thereby having time to influence the election, the rank-and-file members will be able to express their conscience by voting with less undue improper and sometimes illegal influence. These rules, however, must be finalized and approved by majority vote of the Board. This vote must be before the end of December when the Board loses its quorum.