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New NLRB Election Rule under Fire in Congress and Courts

Date: 4.25.2012

With the National Labor Relations Board’s “quickie election” final rule scheduled to take effect on April 30, 2012, Senator Mike Enzi (R-WY), Ranking Member of the Senate Committee on Health, Education, Labor and Pensions (HELP) introduced S. J. Res. 36 under the Congressional Review Act, seeking to prevent the rule’s implementation.  The CRA allows Congress, with the concurrence of the President, to disapprove and void regulations issued by federal executive departments and independent agencies.  However, the Joint Resolution failed in the Senate on April 24.

Background

The NLRB final rule (76 Fed. Reg. 80138) eliminates pre-election rights of employees and employers in order to shorten the time before a representation election takes place.  It amends existing procedures by:

  • Giving the NLRB hearing officer authority to limit the pre-election hearing to matters relevant to “question[s] concerning representation.”  In its commentary accompanying the final rule, the Board explained that while the “regional director must determine that a proper petition has been filed in an appropriate unit in order to find that a question of representation exists, the regional director need not decide all individual eligibility and inclusion questions… and the hearing officer need not permit introduction of evidence relevant only to disputes concerning the eligibility and inclusion of individuals.”  The Board also commented on whether evidence sought to be introduced would be relevant to voter eligibility/inclusion as opposed to unit appropriateness.  As a consequence of this change, employers may not know which employees are eligible to vote until after the election takes place.  This issue is particularly problematic with respect to determining supervisory status; supervisors are considered agents of employers and therefore are ineligible to vote in Board-held elections.  However, if their status is not determined based on a pre-election hearing, their status will remain in doubt during the balloting.
  • Authorizing a hearing officer to decide whether to permit briefing after the pre-election hearing, including the subjects to be addressed and the time for filing.
  • Consolidating the appeals process for Board review of pre-election issues and issues concerning the conduct of the election into a single post-election procedure.  By eliminating the possibility of appealing issues pre-election, the time between the filing of an NLRB election petition and an election will be reduced significantly.  Our best estimate currently is that the time will be reduced to approximately 28-35 days between the filing of the election petition and the election.  (For additional information regarding the timing of the election under the new rule, please see Quickie Election Resolution Adopted, Be Prepared.)
  • Ending the practice of permitting time for appeals to the NLRB from Regional Directors’ decisions before scheduling elections.
  • Allowing requests for special permission to appeal to the Board only in extraordinary circumstances, where it appears that the issue sought to be appealed otherwise would evade review.
  • Giving the Board discretion to hear and decide any appeals from the election process, whether they concern pre- or post-election issues.

Litigation has been filed by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace challenging the quickie election rule.  In Chamber of Commerce, et al. v. NLRB, No. 1:11-cv-02262-JEB, pending before the U.S. District Court for the District of Columbia, the Chamber on February 3, 2012, moved for summary judgment.  The timing of the judge’s ruling is uncertain. Unless a ruling overturning the rule comes down before April 30, the court issues a stay, or the Board defers enforcement, the rule will determine the procedure in all Representation cases filed on or after April 30, 2012.

Implications

The rule will make it more difficult for employers and employees to be certain of voter inclusions and exclusions before a representation election.  It also will expedite the election, thus allowing less time for employees to hear from both the employer and union to make a fully informed choice.  We will keep you apprised of any other efforts to overturn the rule or to defer the April 30th implementation date pending a final judicial determination.