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NLRB Issues Rules Expediting Union Elections and Again Postponing Notices

Labor & Employment Law Alert David B. Kern

Expedited Representation Elections

In what many have called agency activism, the National Labor Relations Board ("NLRB") took yet another measure helpful to organized labor and detrimental to employers. On December 21, 2011, after several months of public comments and meetings, the NLRB released a final rule amending its union representation procedures. The final rule, which takes effect on April 30, 2012, is less onerous than the original one proposed in June 2011, but still significantly burdens employers by expediting union elections and limiting pre-election challenges. The NLRB may proceed with some or all of the other original proposed changes at a later date.

The final rule makes the following changes to NLRB representation case procedures:

  1. Pre-election hearings will be held only to determine whether a question concerning union representation exists that should be resolved in a secret ballot election. Disputes about voter eligibility and unit scope will be determined after the election, instead of before it, if at all.
  2. Hearing officers will have authority to limit pre-election hearing evidence to genuine issues of fact material to the existence of a question concerning representation.
  3. Post-hearing briefs will be permitted at the hearing officer's discretion rather than as a matter of right.
  4. Parties may seek NLRB review of a regional director's pre-election rulings after the election, instead of before.
  5. Regional directors will no longer be prohibited from scheduling the election less than 25 days after directing an election.
  6. Requests for special permission to appeal a regional director's pre-election ruling will be granted only in extraordinary circumstances.
  7. NLRB review of post-election disputes will be discretionary. No longer will there be appeals as a matter of right.

The overall effect of these changes will be quicker elections, which will reduce the amount of time the employer has to communicate its position to employees before they vote. Therefore, many employees may be compelled to vote without all the necessary facts unless employers become more proactive. Under the current rules, many contested representation issues, including unit scope, supervisory status and other voter eligibility questions, are resolved in hearings, briefing and appeals before the election takes place. Currently, many elections with contested issues are held six weeks or more after the election petition is filed. The NLRB recently reported a 38-day median time period between the filing and the election in all cases, with or without contested issues.

Under the amended rule, questions concerning whether the union has the required 30 percent showing of interest - normally on authorization cards - to force an election will still be heard beforethe election, but most other issues will be deferred until after the election, thereby expediting the process considerably. Even then, the amended rule will permit the NLRB to refuse to hear them. Additionally, it now will be possible for regional directors to direct an election as soon as 10 to 20 days after the petition is filed, and the employer will have no recourse.

Since an employer often learns of the organizing effort only when the petition is filed, the time between the filing and the election can be the crucial period during which the employer may lawfully communicate facts about representation and the collective bargaining process to employees. Conversely, unions may campaign and propagandize for months without employer knowledge or involvement before filing a petition for an election.

On December 20, 2011, the day before the NLRB announced the final rule, the U.S. Chamber of Commerce filed a lawsuit in federal court claiming the rule is unconstitutional and goes beyond the NLRB's statutory authority. The lawsuit asks the court to vacate the rule and seeks a preliminary injunction barring it from being enforced.

The three-member NLRB was split over the amended rule; the two Democratic members voted for it, and the one Republican member voted against it. Republican Member Brian Hayes and others accused the Democrats of pushing through the final rule before the expiration of Democratic Member Craig Becker's recess appointment on December 31, 2011, at which point the NLRB will be without a three-member quorum and, thus, the authority to act.

Going forward, employers should prepare for the possibility that elections may take place within very short time periods (10-20 days) after the petition is filed. Regional offices will likely push for faster elections even in stipulated cases. Since employers will have less time to educate and communicate with their workforces once the new rule takes effect next April, they should educate employees now - and at regular intervals afterward - by lawfully expressing opinions and facts about union representation and the collective bargaining process. Employers should also listen to employee concerns and address them when lawfully possible. Finally, they should train supervision to recognize union organizing efforts so they are not caught off guard.

Notice Posting Requirement Postponed Again

On December 23, 2011, the NLRB announced that it is postponing the effective date of its new requirement that all employers subject to its jurisdiction post a notice to employees informing them of their rights under federal labor law, including the right to organize. The effective date has been moved to April 30, 2012, to permit resolution in the interim of litigation challenging the NLRB's authority to have issued the rule.

If you have any questions about this alert, please contact Dave Kern at (414) 277-5653 / david.kern@quarles.com or your Quarles & Brady LLP attorney.