In the memorandum issued by Acting General Counsel Lafe Solomon yesterday, not only does he outline the new "quickie" election procedures set to go into effect on Monday, April 30, but he sets new "best practices" not contemplated in the Board’s new election rules.
The Acting General Counsel acknowledges in the memorandum that the Board’s "final rule does not establish new timeframes for conducting hearings or elections," and further explains that:
This memorandum does not set forth new time goals for the issuance of decisions or the conduct of elections. Regions should continue to process representation petitions and conduct elections as expeditiously as possible, consistent with our statutory mission.
Despite this acknowledgement, the Acting General Counsel takes steps to shorten the time for processing election petitions.
First, despite the fact that the current rules specify that hearings generally must be conducted within 14 days from the date of filing, the Acting General Counsel instructs all Regions to schedule the hearing to start seven (7) days after the petition is filed:
The revised rules adopted by the Board do not specify how soon the pre-election hearing should be held. Currently, most regions issue the Notice of Representation Hearing (NOH) on the day the petition is filed and schedule the initial hearing for 7 to 10 days after the petition is filed. In the interest of having uniform and predictable representation case processes throughout the field, I have adopted the practice of some regions to normally issue the NOH on the day the petition is filed, and schedule the hearing 7 days (or 5 working days) from the date of issuance of the NOH.
Parties can still request an extension of time not to exceed 14 days, absent extraordinary circumstances, from the date of filing of the petition. However, given the Acting General Counsel’s and the Board’s emphasis on eliminating "unnecessary delay," the Regions might feel compelled to increase their practice of imposing conditions on any grant of a postponement as set forth in the notice of hearing form (NLRB -4339). Specifically, Form NLRB-4339 states that an approval of a postponement may be conditioned on one or more of the following:
(1) The agreement of all parties to participate at a conference to be held at the regional office or, alternatively at the discretion of the regional director, a teleconference at least one full day before the rescheduled hearing date;
(2) Agreement by the requestor that if briefs are permitted, extensions of time for filing of briefs will not be sought or granted; and/or
(3) The requestor’s execution of stipulations on matters not in dispute, e.g., jurisdiction, labor organization status, appropriate unit.
Second, the Acting General Counsel now requires all Regions to advise all parties entitled to an Excelsior (voter eligibility) list that they have the right to waive the opportunity to have the list for 10 days before the election occurs. Accordingly, if a union wants to expedite the election, it can waive the 10 day period and have it set within a few days after the employer is required to produce the Excelsior list. Under such a scenario, an election could be held less than 20 days after the petition is filed.
Although a challenge to the Board’s new election rules remains pending, absent any intervening action, the new rules will become effective on Monday, April 30, 2012.