Today, the NLRB voted 2–1 to adopt a resolution put forth by Chairman Pearce that will result in significant changes to the Board’s representation case procedures—changes that most view as decidedly pro-union. Under the Board’s current rules, an employer has the unqualified right to insist on a pre-election hearing, at which it can introduce testimony and evidence, and file a post-hearing brief, addressing issues concerning the scope of the proposed bargaining unit, supervisory status, and other issues. Employers also can seek full NLRB review of any post-hearing decision by a Regional Director on these issues. Under the resolution adopted today, these rules and other election case procedures will change as follows:

  • The Hearing Officer may limit the issues that can be litigated in the case to those relevant to whether a question concerning representation exists. During the meeting, Member Becker suggested that supervisory status—often a hotly contested issue in Representation cases—may not be litigated during the hearing.
  • The Hearing Office will have discretion whether to allow parties to file post-hearing briefs.
  • Requests for Review and Post-Election Objections will be consolidated into a single appeal that may be filed after the election.
  • Elections will no longer be postponed pending resolution of a Request for Review. The practical result of the elimination of the existing 25-day period between the Regional Director’s decision and the election date is that elections may be scheduled shortly after the decision issues.
  • Review by the Board of all election issues will be discretionary.

While these changes do not go as far as those initially sought by the NLRB Chairman, they mark a significant restriction on parties’ procedural rights before the Board. Now that the resolution has been approved, barring any legal challenges, the rule will be finalized and must be approved by a majority of the Board. Click here to read the Chairman’s resolution and here to read the NLRB’s explanation of the resolution. We will continue to monitor this issue and report on it.

Update: The same day the NLRB passed the resolution (December 1), the House passed a bill aimed at rolling back the Board’s efforts to change long-established election procedures.  Among other things, the Workforce Democracy and Fairness Act—introduced in response to the Board’s earlier, more sweeping proposed rulemaking—would prohibit any union election from being held in less than 35 days from the date the representation petition was filed. The bill also imposes a two-week waiting period between the filing of the petition and the hearing. We are monitoring this and other legislative developments affecting the Board, and will update you with developments as they occur.

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced…

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced with wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.

Justin is a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin’s practice encompasses all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010).