NLRB Adopts Final Rule on Union Election Process

By Matthew D. Lahey

Yesterday, the National Labor Relations Board issued its final rule amending its election procedures. This new rule, which the Board says will "reduce unnecessary litigation and delays," is scheduled to take effect on April 30, 2012. The rule curtails the Board's pre-election hearing process and grants the Board the authority to refuse an appeal of a post-election dispute. Specifically, the rule imposes the following changes to the Board's election procedures:

1. Hearing officers have the authority at pre-election hearings to limit evidence.
2. Post-hearing briefs may be filed at the discretion of the hearing officer rather than as a matter of right.
3. Absent extraordinary circumstances, a Regional Director's pre-election rulings will no longer be reviewable prior to the election, but will be reviewable post-election if the issues are not rendered moot by the results of the election.
4. NLRB review of post-election disputes will be in the Board's discretion.
5. The recommendation in the NLRB's current statement of procedure that a Regional Director should not schedule an election sooner than 25 days after the direction of election will be eliminated.

This new rule essentially codifies a November 29th Board resolution, which we reported to you on December 2, 2011.

The final rule was approved by two of the three current members of the Board, Chairman Pearce and Member Becker, both Democrats. Member Hayes, a Republican, who had voted against the November 29th Board resolution, has not yet issued his expected dissent. Chairman Pearce and Member Becker issued the final rule now because Member Becker's term expires on December 31, 2011, which will reduce the Board to two (out of five) members. The Supreme Court has ruled that a two member Board cannot issue new rules or render final decisions.

While the Board was able to finalize the rule before year-end, the final rule, like the November 29th Board resolution, does not adopt some of the more controversial aspects of the Board's June 21, 2011 initial election proceedings proposal. That initial proposal, which explicitly sought to shorten the time period between the filing of the election petition and the actual election, was widely criticized by the business community because it would have hindered a company's ability to campaign and get its message out to its employees. While the final rule approved yesterday is more modest than the Board's June 21st initial proposal, we are concerned that the Board's removal of the 25-day recommendation (as stated in (5) above) will lead to a shorter time period between the filing of the petition and the election. In addition, the Board explained that it will hold further deliberations on the more controversial aspects of its initial June 21st proposal.

The Board's final rule is already being challenged on multiple fronts. The U.S. Chamber of Commerce has filed a lawsuit to enjoin the Board from implementing the rule and to vacate the rule in its entirety. The Chamber argues that the rule violates the National Labor Relations Act, exceeds the Board's statutory authority, and is contrary to the First and Fifth Amendments (which secure free speech and guarantee due process). Senator Mike Enzi (R-Wyo), a member of the Senate's Health, Education, Labor and Pensions Committee has stated that he intends to use the Congressional Review Act, which provides a vehicle for Congress to stop a federal agency from implementing a recent rule or regulation, to block the rule. House Education and the Workforce Committee Chairman John Kline (R-Minn.) also expressed his strong disapproval of the final rule.

RECENT LABOR AND EMPLOYMENT PUBLICATIONS

"NLRB Adopts Portions of Proposed New Election Rule," Labor and Employment Update (December 2, 2011)
"'The Sins of the Father': Third Party Retaliation Claims Allowed to Proceed," Labor and Employment Update (October 11, 2011)
"NLRB Clarifies Social Media Issues," Labor and Employment Update (August 25, 2011)
"California's Overtime Laws Held to Apply To Out-Of-State Residents Performing Work In California," Labor and Employment Update (July 6, 2011)

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