NLRB Issues Final Rule On "Quickie Elections"; Rule Faces Immediate Judicial and Congressional Challenges

Alerts / December 22, 2011

On December 21, the National Labor Relations Board ("NLRB" or the "Board"), announced that it had issued a final rule aimed at reducing the time it takes to conduct union elections. The rule, which was published in the Federal Register today, is scheduled to take effect on April 30, 2012.

According to the Board’s summary accompanying the final rule, the rule "will reduce unnecessary litigation in union representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation." Opponents of the rule, however, claim that it unfairly will limit employers’ participation in the election process by speeding up the timeframe for when elections take place and effectively preempting pre-election challenges by employers.

The final rule makes eight revisions to the NLRB’s existing regulations:

First, it expressly states that the statutory purpose of a pre-election hearing is to determine if a question concerning the employees’ representation by a union exists (i.e, whether the proposed bargaining unit is "appropriate" as defined under the law, or whether there is some type of statutory bar to the election), thereby attempting to put off until after the election litigation of issues such as the eligibility of individual employees in, or their exclusion from, a proposed bargaining unit.

Second, consistent with the first revision, the rule gives hearing officers the authority to limit evidence introduced at pre-election hearings solely to evidence relevant to the existence of a question concerning representation.

Third, it vests hearing officers with the authority to limit the use of post-hearing briefs in pre-election hearings to those instances when they would be of assistance to the decision maker, and to control the subjects addressed in, and the time for filing of, any such briefs.

Fourth, the rule eliminates parties’ right to seek immediate Board review of a regional director’s pre-election rulings, and instead defers all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings.

Fifth, it eliminates the current restriction on setting election dates no sooner than 25 days after a direction of election in order to permit the Board to rule on any request for review.

Sixth, it states that special permission to appeal the regional director's pre-election rulings to the Board before the election will be granted only under extraordinary circumstances, when it appears that the issue will otherwise evade review.

Seventh, it creates a uniform procedure for Board review of a regional director's or judge's disposition of pre- and post-election disputes after both stipulated and directed elections, whereby the Board may deny a party's request for review if it fails to raise "compelling grounds for review."

Eighth, it eliminates the regulations describing its procedures in representation cases contained in Part 101, Subpart C of its Statement of Procedures (29 C.F.R. Part 101, Subpart C) on the grounds that they are duplicative of the regulations contained in Part 102, Subpart C of its Rules and Regulations (29 CFR Part 102, Subpart C).

The final rule is an attempt to implement the Board's resolution passed in November authorizing a "quickie election" rule that was scaled down from the rule initially proposed this past June. That resolution was approved by a 2-1 vote among the three current members of the Board, with the two Democrats on the Board voting in favor of the resolution and the sole Republican voting against it. The final rule was approved by the same 2-1 margin; the Republican Board member, Brian Hayes, will have the opportunity to issue a dissent to be included with the rule prior to when it becomes effective.

In what appears to have been an attempt to deflect anticipated judicial challenges, the Board included with the rule approximately 170 pages of "supplementary information" setting forth a myriad of defenses as to both the substance of the rule and the process by which the rule was implemented. Nevertheless, even before the NLRB issued its final rule, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit in the U.S. District Court for the District of Columbia seeking to enjoin the Board from enforcing the rule (Chamber of Commerce v. NLRB , Case No. 1:11-cv-02262 (D.D.C., complaint filed 12/20/11)). The Chamber's complaint asserts that the final rule violates the National Labor Relations Act, exceeds the Board's statutory authority, and is an unconstitutional infringement upon free speech and due process rights. In addition (as we had pointed to in our December 1 Executive Alert concerning the Board's resolution), the complaint challenges the validity of the rule on the grounds that it was approved only by two members of the NLRB, instead of by a majority of the Board's statutorily mandated five members. Lastly, the complaint alleges the Board violated the Regulatory Flexibility Act by failing to provide an "adequate factual basis" for concluding the rule will not have a significant impact on a substantial number of small businesses, as well as failing to consider the economic impact of speeding up the election process on small business.In addition to the judicial challenge, the rule faced immediate opposition from some within Congress. For instance, Sen. Mike Enzi (R-Wyo.), the ranking member on the Senate Health, Education, Labor and Pensions Committee, announced on December 21 that he plans to use the Congressional Review Act to challenge the rule.

As we have stated in prior Executive Alerts on this topic, the Obama administration and their supporters have attempted to facilitate organizing by unions through the administrative process after failing to win congressional passage of the Employee Free Choice Act ("EFCA"). The final rule, announced by the Board on December 21, constitutes the most successful effort by supporters of Organized Labor in this area to date. It also may represent their high-water mark, since with Member Craig Becker's recess appointment coming to an end on December 31, the Board legally will be unable to render decisions or implement rules with only two members. Moreover, the prospects of having one or more new members swiftly approved by the Senate are dim. The Board's recognition of this reality can be seen in the speed in which it acted on its November resolution, getting the final rule in place before the end of the year.

While others may follow the Chamber of Commerce's lead in filing lawsuits seeking to prevent the rule from going into effect, unions soon most likely will become more aggressive in organizing under the assumption that they will be operating in a more friendly, legal environment, beginning in April. As a result, in advance of the rule's effective date, employers should redouble their efforts to educate supervisors and employees regarding unions, and they should implement and/or review policies and procedures designed to address potential organizing efforts.

If you would like more information about this decision, please contact any member of the Baker Hostetler Employment and Labor team.

Authorship Credit: Patrick M. Muldowney


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