Legal Alert: NLRB General Counsel Releases Guidance on Ambush Election Rules

Executive Summary:  The National Labor Relations Board's Acting General Counsel has issued a guidance Memorandum and Frequently Asked Questions (FAQs) addressing the Board's December 2011 "Ambush Election" Rules.  The Memorandum and FAQs are available on the Board's web site at:  http://www.nlrb.gov/. The new rules take effect April 30, 2012 and will apply to all representation cases filed on or after that date[1]. 

The new rules do not explicitly establish new time frames for conducting hearings or elections.  Eventually time frames are likely to be cut roughly in half once the Board has developed some experience and expertise in processing representational petitions under the new rules.  For example, the current practice is to hold NLRB conducted elections within approximately 42 days (6 weeks) from the filing of the petition to the actual date of the election.  Once the Board and the practitioners before it become more familiar with the new rules, union-free employers can reasonably expect that the 40 day approximate time frame will be incrementally shortened like an accordion folding in half.

Highlights of the Memorandum and FAQs

Following are some of the more significant issues addressed in the 24-page Memorandum and FAQs:

• The revised rules do not specify how soon a pre-election hearing must be held.  The Memorandum states that the Notice of Representation Hearing (NOH) should be issued the day the petition is filed and hearing scheduled 7 days (or 5 working days) from the date of issuance of the NOH.  According to the Memorandum, this will give regions some flexibility to address postponement requests and meet outstanding instructions that hearings be conducted within 14 days from the date of filing, absent extraordinary circumstances.
• Requests for postponement of a pre-election hearing will not be granted unless good and sufficient grounds are shown and certain requirements (set forth in the Memorandum) are met.  Absent extraordinary circumstances, requests for postponement of a pre-election hearing to a date more than 14 days after the date the petition was filed will normally not be granted.  Additionally, the FAQs and Memorandum note that requests for postponement may be conditioned on the parties' agreement to participate in a pre-hearing conference, not seek extensions of time to file briefs (if allowed), and/or enter into other stipulations on matters not in dispute.
• The Memorandum and FAQs reiterate that only issues relevant to a determination of whether a question concerning representation exists and unit scope questions should be handled at a pre-election hearing. 
• Hearing officers are no longer required to permit parties to fully litigate all eligibility issues prior to the direction of an election, meaning parties no longer have a right to litigate an individual's inclusion or eligibility.
• The revised rules state that disputes over individuals' eligibility to vote or inclusion in an appropriate bargaining unit "ordinarily" need not be litigated or resolved before an election is conducted.  The rules do not define "ordinarily" but the Memorandum advises Regional Directors to generally treat "10 percent as a rule of thumb for deciding whether to permit litigation" over individual or group eligibility issues, "bearing in mind that deviation is sometimes advisable."
• The Memorandum identifies specific issues that must be determined at pre-election hearings.  The Memorandum further provides that a determination of whether individuals in an appropriate unit are ineligible because they are not employees as defined by the Act and whether individuals fall within the terms used to describe the unit may be deferred for post-election determination unless more than 10% of the unit is in dispute.
• Supervisory status of individuals generally will not be litigated prior to the election even if the parties assert that pro-union conduct by a supervisor tainted the petition or the showing of interest.  The Memorandum notes that allegations of supervisory taint of showing of interest are normally determined through an administrative investigation conducted by the regional director independently of the pre-election hearing.  Additionally, because a petition filed by a supervisor cannot raise a valid question concerning representation, a dispute with respect to whether the individual filing a petition is a supervisor must be resolved at the pre-election stage, typically in an administrative investigation.
• Similarly, questions regarding the managerial status of employees generally will be deferred until after the election unless the petitioned-for unit or a major portion of that unit is assertedly managerial; then a hearing must be held to ascertain managerial employee status before the election.
• The Memorandum and FAQs reiterate the Board's adoption of the standards for determining an appropriate unit in Specialty Healthcare (i.e. permitting "microunits" and placing the burden on the employer of showing that employees excluded from the proposed unit share an "overwhelming community of interest with the petitioned-for employees," such that there "is no legitimate basis upon which to exclude certain employees from" the larger unit because the traditional community-of-interest factors "overlap almost completely").
• A hearing officer can require an offer of proof from the party seeking to overcome a presumption or meet an assigned burden and if the offer of proof is insufficient, refuse to allow litigation of the issue.
• Hearing officers now have significantly expanded discretion regarding whether to allow post-hearing briefs, when briefs must be filed and what the briefs should address.  Factors to be considered in making this determination include: number and complexity of issues; whether significant issues are presented that are factual, legal or both; whether the law is in flux, settled, or recently changed; whether the case presents issues that are of first impression, unusual, or novel; and the parties' positions on the need for briefs.
• The Memorandum reiterates that special permission to appeal to the Board will only be granted under "extraordinary circumstances" when it appears that the "issue will otherwise evade review" and includes directives for handling special appeals. 
• If there are no objections or determinative challenged ballots, requests for review must be filed within 14 days after the tally of ballots has been prepared and made available to the parties.  If there are determinative challenged ballots and/or objections are filed, requests for review of pre-election decisions must be filed within 14 days after the regional director's decision on challenged ballots, on objections, or both.  The request for review of the pre-election decision may be combined with a request for review of the decision on objections/challenged ballots.
• Where individuals are permitted to vote subject to challenge, the Notice of Election will include the following language:  OTHERS PERMITTED TO VOTE: At this time, no decision has been made regarding whether (Classifications) are included in, or excluded from, the bargaining unit, and individuals in those classifications may vote in the election but their ballots shall be challenged since their eligibility has not been resolved. The eligibility or inclusion of these individuals will be resolved, if necessary, following the election.
• Exceptions to hearing officers' reports are to be filed with regional directors instead of the Board.
• All exceptions will be decided by the regional director instead of the Board.  Subsequently, the Board may grant or deny requests for review, and if the Board denies the request for review, the denial is summary affirmance of the actions of the regional director.

Employers' Bottom Line: 

The new rules likely will result in a shortened time frame for conducting hearings and elections; however, the shortening of these time frames probably will occur incrementally as the Board and practitioners become more familiar with the new rules.  If you have any questions regarding the Memorandum or other labor or employment issues, please contact Keith Warren, kwarren@fordharrison.com, who is a partner in our Memphis office, or the Ford & Harrison attorney with whom you usually work.