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December 22, 2011

NLRB Adopts Final Rule Amending the Union Election Process

The National Labor Relations Board (“the Board”) has adopted a final rule amending the Board’s current rules and regulations on representation elections.  The rule is due to take effect on April 30, 2012.  The final rule implements a modified version of the proposed rule, approved by the Board on November 30, 2011, and discussed in our December 1, 2011 client alert. (Click here).   If implemented the rule will substantially change and speed up the union election process, as well as limit employer participation in that process.

The final rule includes the following changes:

  • Construing Section 9(c) of the National Labor Relations Act (the “Act”) to state that the purpose of a pre-election hearing is to determine if a question of representation exists;
  • Authorizing hearing officers in election cases to limit the presentation of evidence on issues of supervisory status and voter eligibility or inclusion, to that which the hearing officer determines supports a party’s contentions and is relevant to the existence of a question concerning representation;
  • Authorizing hearing officers in election cases to decide whether to permit the filing of written briefs following the hearing;
  • Consolidating the two separate appeals processes before the Board, those appeals that seek review of pre-election issues and those appeals concerning the conduct of the election itself, into a single post-election procedure;
  • Eliminating the practice of delaying the scheduling of elections for a 25-day waiting period to permit time for a pre-election appeal;
  • Limiting the circumstances in which a request for special permission to appeal to the Board would be granted to only extraordinary circumstances; and
  • Providing the Board with the discretion to hear and decide any appeals to the election process, whether they concern pre-election or post-election issues. 

A number of the proposals from the June 22, 2011 Notice of Proposed Rulemaking were not included and adopted in the final rule.  The proposals not adopted include, for example, the electronic filing of election petitions; the proposed requirement that any pre-election hearing be held seven days after service of the notice of hearing; and the requirement for employers to provide a final voter list in electronic form that includes telephone number and email addresses (when available), with the deadline to produce this list shortened to two work days.  These proposals remain pending and are subject to further consideration by the Board.

On December 20, 2011, just one day before the Board’s adoptions of the rule, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a complaint in the U.S. District Court for the District of Columbia seeking to block implementation of the new rules.  The lawsuit claims that the rule is unconstitutional and goes beyond the Board’s statutory authority.  We will keep you apprised on any developments in this litigation. 

If you should have any questions regarding the Board’s final rule or the pending litigation, please contact us.