NLRB Postpones the Effective Date of its Employee Rights Notice Posting Rule and Issues Final Election Rules

1. NLRB Postpones the Effective Date of its Employee Rights Notice Posting Rule.

On December 23, 2011, the NLRB announced that at the request of the federal judge hearing a legal challenge to the posting requirement, it has agreed to postpone the effective date of its employee rights posting rule to April 30, 2012. Most private sector employers are subject to this posting requirement. If you want more information on this posting requirement, go to our website and select the Resources section and click on Client Alerts.

2. NLRB Issues Final Election Rules.

On December 22, 2011, the NLRB published its final rule implementing sweeping changes to its representation election procedures. This final rule, if it survives legal challenge, is a boon to unions and will greatly disadvantage both employers and employees during union organizing campaigns.

A full alert to this new rule can be read below:

Final NLRB Election Rules

After months of palace intrigue within the NLRB, a draft final rule amending its election case procedures was published on December 22, 2011. The NLRB contends that the rule, which becomes effective on April 30, 2012, will “reduce unnecessary litigation and delay.” In reality it amounts to a huge Christmas present for organized labor. It speeds up the election process while also limiting the employer’s ability to challenge potential voter eligibility until after the election!

The new rule focuses primarily on the procedures to be used at a Representation Case Hearing whenever the union and the employer cannot agree on such matters as voter eligibility and the time and place of election. Today, the employer has a right to litigate such issues and ask the NLRB to resolve the differences before an election is scheduled. Under the new rule, pre-election hearings will be limited to a determination of whether an election should be conducted. The new rule also gives the NLRB the ability to limit the presentation of evidence to what it believes to be relevant to the existence of a “question concerning representation.” The rule further grants the hearing officer discretion over the filing of post-hearing briefs, “including the subjects to be addressed and the time for filing.” Under this scheme, voter eligibility issues will be left to be decided post-election.

The new rule also eliminates the parties’ right to file a pre-election request for review of a Regional Director’s decision and direction of election, instead deferring all such requests until the election. The rule also eliminates the recommendation that the Regional Director should ordinarily not schedule an election sooner than 25 days after the direction of election. The new rule also provides that the Board review of Regional Directors decisions is discretionally and it substantially narrows the circumstances under which a request for special permission to the Board will be granted.

What It Means for You

First and foremost, those changes will shorten the time period from the filing of the Union’s petition to the election. This shortened time frame will disadvantage both employer and employee to the advantage of unions. Employers will have less time to educate employees about the disadvantages of union representation and to train your supervisors how to respond lawfully to the union’s organizing campaign. Unions will have more control over the timing of what will be ambush elections designed to limit an employer’s ability to respond and educate its employees.

While the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace immediately filed a federal lawsuit against the Board seeking to invalidate the final rule, employers need to prepare for the worst case scenario that the rule will become effective this April 30! Employers need to audit their existing policies, wages, benefits, and working conditions to assess potential union vulnerability. Supervisors should be trained well in advance of April 30 and a lawfully prepared response plan needs to be developed.