NLRB Adopts Resolution to Implement Several Proposed “Quickie Election” Rules-But Final Passage in Doubt

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December 6, 2011

(See Original Legal Update of July 29, 2011)
Not surprisingly, the National Labor Relations Board (“Board”) recently advanced its July 2011 Notice of Proposed Rulemaking, adopting a resolution designed to make union avoidance a more challenging proposition for private-sector employers. At a public meeting held on November 30, 2011, the Board voted, 2-to-1, in favor of a resolution to adopt six procedural amendments to the rules governing representation elections under the National Labor Relations Act (“NLRA”) (the Board’s resolution did not include all portions of the proposed amendments contained in the June 2011 Notice of Proposed Rulemaking, including several controversial proposals). If ultimately implemented, the procedural changes adopted through the November 30, 2011 resolution will expedite the “representation election” process, to the detriment of private-sector employers. However, before the procedural changes can take effect, the Board must now draft a final version of the rules and vote to approve the final rules before the end of 2011-a considerable challenge.
The Board ‘s November 30, 2011 Resolution Contains the Following Six Procedural Amendments:

The resolution limits the scope of “pre-election hearings” 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.

The resolution gives hearing officers 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.

The resolution eliminates procedures for appeals of pre-election disputes filed prior to elections, instead consolidating pre-election disputes with post-election appeal procedures that currently emphasize only election-conduct issues

The resolution eliminates 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.

The resolution limits the circumstances under which a pre-election request for special permission to appeal (to review Regional Directors’ rulings) to the Board would be granted to “extraordinary circumstances,” when it appears that the issue addressed in the appeal would otherwise evade review.

The resolution gives the Board 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.”

The Following Controversial Portions of the June 2011 Notice of Proposed Rulemaking are Not Included in the November 30, 2011 Resolution:

Inclusion of e-mail addresses and phone numbers within the voter-eligibility list furnished to unions before elections.

Electronic filing of petitions.

The requirement that hearings be set for seven days after service of the notice of hearing.

The requirement of a statement of position filing.

Change of the period for filing the voter list from seven to two work days.

Notwithstanding the November 30, 2011 resolution, the Board must now prepare its final rule and vote on it before the resolution takes effect (via 2-to-1 majority approval). Complicating the matter is the fact that Board Member Craig Becker’s recess appointment expires on December 31, 2011 – meaning the Board will lose its three-member quorum and be unable to adopt rules or conduct business in any significant manner beyond December 31, 2011 (according to the U.S Supreme Court). Thus, it is anticipated that the Board will move quickly in the coming days and weeks in an attempt to prepare and vote on the final rule.
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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