NLRB Proposes Election Procedure Amendments

Monday, July 18, 2011

The National Labor Relations Board has published a Notice of Proposed Rulemaking, which proposes amendments to its existing rules and regulations governing procedures in representation cases. 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. 

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.

If adopted after a public notice-and-comment process, the proposed amendments would:

  •  Allow for electronic filing of election petitions and other documents.
  • Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
  • Standardize timeframes for parties to resolve or litigate issues before and after elections.
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
  • Defer litigation of most voter eligibility issues until after the election.
  • Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
  • Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
  • Make Board review of post-election decisions discretionary rather than mandatory.

The NLRB has provided for a period of public comments. Comments should be submitted within 60 days of publication in the Federal Register, either electronically to, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570.  

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