Today marks a new day for the National Labor Relations Board, as significant changes to its election procedures officially take effect.   All NLRB election petitions filed starting today will be subject to these new rules.

The most significant changes concern the role of a pre-election hearing.   Up until now, a pre-election hearing was an opportunity for the Union and the Employer to litigate various issues associated with the election, including which employees should be eligible to vote and which employees are supervisors and are ineligible to vote.   Now, according to a Guidance Memorandum released by the NLRB General Counsel’s office last week, individual voter eligibility issues will be litigated at a pre-election hearing only if 10 percent or more of the unit is in question.    Furthermore, when deciding scope of voting unit issues, the hearing officer is expected to apply the Board’s Specialty Healthcare framework (see our previous series of blog posts analyzing post-Specialty Healthcare cases here).  That is, the Board will first look to see if the unit proposed by the Union is a “readily identifiable group” and share a community-of-interest.  If so, the unit is valid and the employer must establish that additional employees it seeks to include share an “overwhelming community of interest.”   The hearing officer and regional director will then make the call as to whether the employer has met that test.

What if the hearing officer and regional director get it wrong?  After all, Specialty Healthcare was just released last August, the case was a major deviation from how bargaining unit determinations were previously made, there are scant Board cases on the issue, and the case is on appeal in the 6th Circuit.   Yet, the new election rules eliminate any pre-election appeal to the NLRB of hearing officer/regional director determinations, unless there are “extraordinary circumstances.”   In discussions we have had with Region 5 personnel, it appears that employers will need to trust that the Regional offices and their staff will get these bargaining unit determinations right.  We also understand from NLRB staff that the “extraordinary circumstance” pre-election appeal will be rarely granted by the Board.

As for the supervisor issue, disputes over whether an employee is a supervisor will not be considered at the pre-election hearing at all, if the employees in dispute constitute less than 10 percent of the voting unit.  Those employees will vote subject to challenge and the issue will be decided post-hearing.

The new rules change some other technical aspects of the hearing as well.  For instance, on the day an election petition is filed, a notice of hearing will be issued and a pre-election hearing will be scheduled within 7 days or 5 working days.  Regional Directors are encouraged to narrow the issues at a “pre-hearing” hearing and conduct a pre-hearing conference, if necessary.  And, in a major logistical change, the hearing officer retains discretion on whether to allow post-hearing briefs.   When post-hearing briefs are not allowed, the parties will be allowed time at the hearing to make an oral argument or submit a brief as an exhibit.

The post-hearing process is also different under the new rules.  The biggest change is that exceptions to the hearing officers’ report and requests for review will be considered by the Regional Director.   The Labor Board may grant or deny requests for review, but a denial should be treated as a summary affirmance of the actions of the Regional Director.

The big question many employers have is how much time they will be allotted between the filing of an election petition and an actual election.   Previously, the Board used a 42-day timeframe.   The new rules and the GC memo do not establish a new timeframe.   However, given the changes outlined above, the 42-day period will be shortened.   The exact amount of time will depend, as reviewed above, on whether 10 percent of the possible eligible voters are in dispute, thus necessitating a more complex pre-election hearing.  Also, a major factor in the timing is whether the Union waives its right to a voter eligibility list.  The Union has a right to have such a list (called an Excelsior list) for 10 days prior to the election, but can waive that right, for some or all of the 10 day period.   A Union that feels good about its chances of winning an election (or has already obtained the info through other means) now might very well waive that right in order to speed up the election.   Running through an example with the new rules, it appears that the petition to election time frame could be as little as 28-30 days if the Union waives its right to the list.  If not, the election still could take 38-40 days, though this would be the outer bounds.

The big picture is that the new rules will likely result in faster elections.   This means that employers will have fewer opportunities to communicate with employees about the pros and cons of unionization once a petition is filed, thus making it even more important employers have a proactive strategy now that addresses unionization.      In that way, today is not only a new day for the NLRB, but for all non-union employers as well.