On December 22, the National Labor Relations Board adopted final regulations overhauling the Board's procedures for pre-election challenges to representation petitions. The changes are intended to significantly expedite union elections by narrowing the grounds and time frames for pre-election legal challenges.
The new rules will in effect limit pre-election challenges to petitions on questions concerning representation status. The amount of time employers have to present their challenges will be truncated, and NLRB hearing officers will have substantial discretion to summarily reject cases deemed to be outside the limited scope of permitted challenges. Elections will likely occur within 30 days of the union's filing. Most appeals will be conducted after the election has occurred, and the Board has further limited the scope of such post-election hearing requests.
The NLRB's sole Republican member dissented from the 2-1 vote approving the new rules. Employers contend that union elections are already conducted on an expedited basis, and that there is no need to further shorten the process. They claim that the real reason for limiting employers' ability to legally challenge union representation efforts is to lessen the amount of time companies have to communicate with and educate employees prior to the date of the election. Once the union is in place, post-hearing challenges are less likely to result in invalidation of the election results.
Employer interest groups have already filed suit challenging the new procedural rules. Until recent recess appointments by President Obama, the NLRB was about to lose its quorum. The current Board would not have been able to act had it not issued the rules before the end of 2011. Unless blocked by a federal court, the new procedures will take effect April 30, 2012.