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NLRB Temporarily Suspends New Union Election Rules

Labor & Employment Law Alert David B. Kern, Fred Gants

As described in our May 1, 2012 update here, new rules issued by the National Labor Relations Board ("NLRB" or "Board") expediting union elections and dramatically shortening the time frame between the filing of a union representation petition and the actual election became effective April 30, despite pending challenges to their validity. On May 14, 2012, the United States District Court for the District of Columbia held that the NLRB's new election rules were invalid because the Board enacted the rules without the required three-member quorum. In the wake of this decision, the NLRB announced on May 15 that it was temporarily suspending the implementation of the new election rules.

In announcing the temporary suspension, Board Chairman Mark Gaston Pearce stated that while the Board continues to believe that the new rules represent a "significant improvement" in NLRB election processes, the Board was suspending implementation of the rules in order to review and consider the District Court's decision. The Board instructed the NLRB's Regional Directors to revert to their prior practices for processing and handling representation election petitions.

In light of Chairman Pearce's statement that the Board is "determined to move forward" with the new rules, the Board's action suspending their implementation may be nothing more than a brief reprieve for employers. Some observers believe that the NLRB, now with five sitting members, will simply re-adopt the rule. That action likely would be challenged on quorum grounds as well since there is pending litigation over the legitimacy of the recent presidential appointments.

Although the clouds of uncertainty continue to swirl, employers can take steps to minimize their risk of unionization. We continue to recommend that employers anticipate and be prepared to communicate their position on the issue of union representation. Employers should promptly take the following preventive steps:

  • Conduct an in-depth analysis of the potential risks for organizing;
  • Determine an appropriate team to handle representation election campaign communications;
  • Train supervisors on the "do's and don'ts" to avoid committing unfair labor practices in connection with an election campaign;
  • Train supervisors to recognize the warning signs of potential organizing activity;
  • Proactively communicate the employer's union-free philosophy; and
  • Insure appropriate identification of statutory supervisors under the law.

Quarles & Brady's National Labor Relations Act Team has extensive experience in assisting employers with these issues. If you have any questions regarding the Board's recent action or your response to it, please contact David B. Kern at (414) 277-5653 / [email protected], Fred Gants at (608) 283-2618 / [email protected] or your Quarles & Brady LLP attorney.

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