Yesterday, NLRB Acting General Counsel Lafe Solomon outlined how regional offices will implement new representation case procedures that take effect on Monday, April 30. Of benefit to employers, the guidance covers the entire representation case process from beginning to end, incorporating the new rules and the procedures that remain unchanged. Briefly, the changes to the rules are:
1) An explicit statement that the statutory purpose of a pre-election hearing is to determine if a question concerning representation exists.
2) Hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation. Importantly, issues that will not clearly affect the results of an election are to be deferred until after the election
3) Hearing officers have discretion over the filing of post-hearing briefs, including over the issues to be addressed and the time for filing, subject to the authority of the regional director.
4) Most requests for Board review—with the exception of special permission to appeal—are postponed until after the election.
5) The requirement of a 25 day delay between the direction of an election and the actual election is eliminated.
As explained by the Board, the changes primarily affect procedures in elections for which the parties cannot agree on unit, eligibility and similar issues.
The General Counsel’s office also issued a set of frequently asked questions, which explain the Board’s revised rules and the procedures that will be followed by regions in elections.
Employers should understand that the new procedures will dramatically shorten the time period between a petition and the actual election. Therefore, employers should no longer assume that there will be sufficient opportunity for an effective campaign. Consistent proactive union avoidance strategies should be considered.