|December 6, 2011|
Previously published on December 2, 2011
In a Legal Alert dated June 29, 2011, we discussed proposed changes to the National Labor Relations Board's rules regarding union representation elections that would have the likely effect of giving unions certain tactical advantages in the election process. The proposed rule changes met with strong opposition from the business community, but on November 30, 2011, the National Labor Relations Board ("NLRB"), facing the imminent loss of a quorum, voted to move forward on implementing a final rule addressing six of the proposed changes.
The NLRB's Resolution to Adopt a Final Rule
The NLRB, currently operating with only three members ¿ the bare minimum for a quorum, voted 2-1 to prepare a final rule making the following changes to the existing representation election rules:
- Limit pre-election hearings to the issue of whether a "question of representation" justifying an election exists. This change is expected to prevent employers from raising voter-eligibility issues at the pre-election stage in most cases.
- Give the hearing officer conducting a pre-election hearing the discretion to allow or disallow post-hearing briefs. Currently, the parties at a pre-election hearing may file such briefs as a matter of right.
- Eliminate the routine right to file a pre-election appeal of a Regional Director's rulings in a representation case. This change will ordinarily defer the opportunity to obtain NLRB review of a Regional Director's pre-election rulings until after the election is held.
- Limit the pre-election review of a Regional Director's rulings by the NLRB to situations in which the NLRB grants special permission for such review because of "extraordinary circumstances" that would preclude the review of the issue at the post-election stage.
- Eliminate language in the current rules generally barring the Regional Director from scheduling an election any earlier than 25 days after the issuance of the Regional Director's decision following a pre-election hearing.
- Give the NLRB the discretion to deny review of a Regional Director's post-election rulings. Currently, the NLRB has discretion to deny review of the post-election rulings of a Regional Director in some, but not all, election situations.
The proposed rule changes that the NLRB announced last June cover considerably more topics than the six changes described above, but the NLRB's November 30 resolution to proceed with a final rule at this time covers only the matters described above. The other changes proposed in June remain "under consideration."
The NLRB's action on November 30 does not implement the changes described above, but merely starts the agency's process for preparing the final rule incorporating those changes. Once the final rule is written, it must be approved by the NLRB and published in the Federal Register. The two NLRB members who voted to authorize the final rule have a strong incentive to have the final rule drafted and approved within the next few weeks. With the term of one of the three current members of the NLRB scheduled to expire later this month, the NLRB will lack a quorum necessary to adopt the final rule thereafter unless President Obama makes a recess appointment of a new NLRB member after Congress adjourns at the end of the year or the Senate approves the President's nominations of additional NLRB members.
Once it is implemented, the final rule authorized by the NLRB will likely have the practical effect of shortening the time period between the filing of a petition seeking a representation election and the holding of the election in many cases involving pre-election litigation. The shortened time period between petition and election in these cases will provide a tactical advantage to unions, as employers will often have less time after the filing of a petition to educate their employees about the realities of union representation and the collective bargaining process before those employees cast their ballots for or against union representation. It will therefore be crucial for employers to have a strategy in place for addressing union organizing activity at the first sign of such activity. Before any changes to the NLRB's election rules are implemented, employers should examine their vulnerability to union organizing efforts and take appropriate measures to train supervisors and develop strategies for responding promptly to union organizing activities if they should occur.