On November 30, 2011, the National Labor Relations Board (“NLRB”) voted 2-1 to adopt a resolution paving the way for adoption of a Final Rule to expedite representation elections. Prior to adoption of the resolution, the NLRB had received 65,000 formal comments. The vote was along political party lines. The exact date when this resolution will become a Final Rule is unknown. However, because prior to 2012 the Board will lose a Member and its quorum, a vote is expected on the Speedy Election Final Rule within 30 days. These changes likely will be challenged by various employer associations. This Speedy Election Rule change follows the adoption this August by the NLRB of its controversial National Labor Relations Act (“NLRA”) Employee Rights Poster Rule. Because this rule is being challenged, the NLRB postponed its posting requirement until January 31, 2012.

As to Speedy Elections, under existing NLRB regulations, a union can file a request for an NLRB supervised secret ballot election if it obtains authorization from 30% of employees in an appropriate bargaining unit, that the union be their collective bargaining representative. Upon the filing of such a petition with the NLRB, an employer had the right to a hearing to present factual or legal issues relative to the union’s petition. Typical issues included the eligibility of persons to vote, supervisory status of workers who would be ineligible to vote, or the scope of the unit. Post hearing, the parties would file briefs and had a right to appeal an adverse decision to the NLRB. Elections were scheduled within 25 days following the NLRB’s decision to direct an election. The ordinary “case,” from filing a petition to election, took approximately 38-45 days. During that time, an employer typically engaged in a pro-employer, anti-union campaign. In sum, unions want to shorten or eliminate the timeframe allowed an employer to respond to a union election petition (under the Employee Free Choice Act).

To speed the election process, the NLRB plans to institute the following six (6) key changes:

1. A pre-election hearing shall be solely limited to a determination of whether a question of representation exists (30% showing of interest), and the hearing officer has authority to limit evidence solely to whether there is a genuine issue of fact related to this question;
2. Unit or employee classification issues will be heard only at the discretion of the hearing officer;
3. Post-hearing briefs shall be filed only by permission of the hearing officer in an “unusual case”;
4. Pre-election appeals to the Board are eliminated;
5. The resolution eliminates the 25-day waiting period. The timeframe from filing a petition to the election will be left to the discretion of each Regional Director – no minimum timeframe or criteria for setting the election date are in the resolution; and
6. Board review of post-election issues shall be discretionary.
7. Other proposed changes, not included in the resolution, remain under consideration, e.g., providing unions with employee email addresses.

In sum, employers should anticipate speedier elections, fewer opportunities to object prior to the election, no right to an interlocutory appeal of a Hearing Officer’s decision pre-election, and that the Board will have sole discretion over what issues it will review post election.

Assuming imminent adoption of this Final Rule, non-union employers should consult a labor relations consultant or attorney to develop a strategic plan addressing how to respond to union organizing activity. This plan should include management and supervisory training, the rights and restrictions that apply to employers during periods of union activity, and creation of a checklist of potential actions and reactions to union activity