The Law @ Work

NLRB Re-Publishes “Quickie Election” Rule

by Kimberly A. Klimczuk

Nearly two years after a federal district court judge struck down the National Labor Relation Board’s rule amending union election procedures, the NLRB has reissued the rule in the hopes of accomplishing what the legislature could not when it failed to pass the Employee Free Choice Act in 2009. The NLRB contends that the rule will “reduce unnecessary litigation and delay” in the context of union organizations. In reality the new rule will be a boon to organized labor, speeding up the union election process while also limiting the employer’s ability to challenge potential voter eligibility until after the election has already taken place.

The initial rule published in 2011 was overturned when, in a lawsuit filed by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, the U.S. District Court for the District of Columbia ruled that the NLRB did not have the required three-member quorum when it voted on that rule. Now that the NLRB is back to its full slate of five members and the quorum issue is resolved, it has reissued the rule.

The new rule is substantially identical to the 2011 rule. It 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 to 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. In addition, the rule 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 discretional 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, the proposed changes will shorten the time period from the filing of the Union’s petition to the election. This shortened time frame will disadvantage both employers and employees to the advantage of unions. Employers will have less time to educate employees about the disadvantages of union representation and to train 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.

The NLRB will accept comments on the proposed rule until April 7 and will hold a public hearing on the proposal during the week of April 7. Comments may be filed through (Docket ID No. NLRB-2011-0002). While the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace may revive their challenge to the rule, employers must prepare now for the rule to become effective. Employers should audit their existing policies, wages, benefits, and working conditions to assess potential union vulnerability and should prepare a lawful response plan in the event of a union organizing drive.

Skoler Abbott attorney John Glenn will be presenting a free briefing on these changes on Wednesday, March 26 from 8:30 a.m. to 10:30 a.m. at the Employers Association of the Northeast’s Training Center in Agawam, MA.

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