NLRB Adopts Final Rule Implementing its November 30, 2011 “Quickie Election” Resolution

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January 6, 2011

As many observers anticipated, the National Labor Relations Board (“NLRB”), prior to the expiration of Member Becker ‘s recess appointment on December 31, 2011, successfully promulgated and published a final rule adopting several so-called “quickie election” provisions designed to make union avoidance a more challenging proposition for private-sector employers. The final rule is available to the public at the following link: http://www.gpo.gov/fdsys/pkg/FR-2011-12-22/pdf/2011-32642.pdf

As originally reported in our December 6, 2011 article, the final rule makes the following changes to election procedures, which are due to take effect on April 30, 2012:

The scope of “pre-election hearings” are limited to pure “questions of representation,” meaning hearing officers are vested with authority to refuse consideration of certain ancillary concerns-possibly supervisory status, appropriateness of bargaining unit, etc.
Hearing officers are given discretion to disallow “post-hearing briefs,” which currently are allowed as a matter of right. In other words, this amendment gives hearing officers authority to deny employers’ written legal memoranda unless non-routine issues are involved.
Procedures for appeals of pre-election disputes filed prior to elections are eliminated, instead consolidating pre-election disputes with post-election appeal procedures that currently emphasize only election-conduct issues
The twenty-five to thirty-day waiting period between issuance of a Regional Director’s Decision and Direction of Election and the scheduling of an election-which currently allows time to consider and present pre-election appeals-is eliminated.
The circumstances under which a pre-election request for special permission to appeal (to review Regional Directors’ rulings) to the Board would be granted only under “extraordinary circumstances,” when it appears that the issue addressed in the appeal would otherwise evade review.
The Board is given discretion to deny post-election appeals of Regional Directors’ post-election rulings-meaning the Board may dispose of post-election appeals that do not address “a serious issue for review.”

If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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