Labor Logic

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John D. Finerty, Jr.

The National Labor Relations Board is the federal agency charged with responsibility for carrying out the National Labor Relations Act. Specifically, the NLRB conducts elections among private sector employers to determine whether or not the employees want to be represented by a union. Election procedures, however, can be cumbersome and objections to election procedures may hold up certification of the final results for years.

As a result, the NLRB published revised rules and regulations in the Federal Register on Jan. 25, 2005. According to the Board, revisions to the regulations were necessary to allow parties to expedite elections if they so choose.

Background

The NLRB is comprised of a five-member board and, separately, the Office of General Counsel, who is independent from the board and responsible for investigating and prosecuting unfair labor practice cases. Unfair labor practice cases and election cases come to the board from Regional Offices spread throughout the country.

Each Regional Office is headed by a regional director who is responsible for, among other things, making initial determinations in representation cases that arise within a particular geographical area. There are 34 NLRB regions. Region 30 is located in Milwaukee and covers most of Wisconsin. Thus, election disputes that involve employers with job sites anywhere in Wisconsin will likely have their cases heard by the Milwaukee regional office.

Parties to an NLRB election have the right to appeal to the board from an adverse decision by a regional director. Regional directors, however, are overturned by the board on review only in a very small percentage of cases. Thus, the board felt it necessary to offer parties the opportunity to consent, in advance, that all disputes, including ballot challenges and objections to procedures, may be decided by a regional director and receive automatic certification by the board, but without board review.

Election Issues

The NLRB conducts secret ballot elections to determine whether employees want to be represented by a union. NLRB regulations set the rules on how the election will be conducted. Parties to the election may raise objections both before and after the election and may challenge the eligibility of voters at the election site. Disputes over issues such as voter eligibility, pre-election conduct and post-election legal issues, are typically resolved by a regional director initially.

The regional director may hold a hearing or simply decide the issue on written submissions. The director issues Findings of Fact and Conclusions of Law that may be appealed to the NLRB in Washington. Even in the absence of objections, however, final certification of the election results is reserved for the NLRB in Washington.

This procedure may take weeks, months or even years.

“Full” Consent Election

Under the new NLRB regulations, parties to the election may stipulate that the regional director may decide all election disputes with no right of appeal to the board in Washington. The regional office would still be responsible for investigating election objections, conducting a hearing and issuing a report setting forth Findings of Fact and Conclusions of Law. That report, however, would be final and binding and not subject to appeal. The election results, once certified by the regional director, would have the same binding force and effect as if they were certified by the board.

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According to the NLRB, this type of "full" consent election offers a number of advantages. It provides a quicker resolution of representation disputes; access to a secret ballot election without delays; the ability to litigate election issues without delay; savings in legal expenses; and, elimination of uncertainties related to the business as a result of pending representation issues.

There are, however, a few obvious drawbacks to such a system. First, the absence of appeal rights, especially in close elections, is problematic. Board law is often confusing even to experienced practitioners, so mistakes are made. Also, board law changes relatively frequently as administrations change in Washington. Thus, objections or election challenges that were unsuccessful at one time may get a second chance in Washington.

Parties that want more information on full consent elections may obtain a tri-fold information brochure from Region 30 by calling (414) 297-3861 or the NLRB in Washington at 1-866-667-NLRB. Information, including the full consent election agreement form NLRB-5509, is also available at www.nlrb.gov.