On December 21, the National Labor Relations Board (“NLRB”) published a new Rule that will change the procedures for private sector union representation elections. The Rule, which will take effect on April 30, 2012, shortens the time period between the initial filing of the election petition and the election, unless the parties stipulate to the election date. As a result, the Rule eliminates pre-suit challenges to NLRB rulings such as the appropriate bargaining unit and which workers are eligible to vote in an election.
Specifically, the Rule amends the NLRB’s rules of procedure to:
- Permit NLRB hearing officers to limit evidence on eligibility issues;
- Give hearing officers greater discretion over post-hearing briefs;
- Require requests for pre-election review to be consolidated with any post-election request for review of the Regional Director’s ruling on challenges and objections, effectively eliminating pre-election review;
- Abolish the 25 day waiting day period between the Regional Director’s post-hearing Decision and the election;
- Limit special appeals from NLRB hearing officer or Regional Director rulings to “extraordinary circumstances where it appears that the issue will otherwise evade review.”
The shortened time period effectively limits the opportunity for employers to communicate their views with employees on representative elections. The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit against the NLRB for injunctive and declaratory relief, alleging that the Rule prevents them from talking to their employees about the cost of unionizing, and curbs their power to bring legal challenges over elections.
Author(s): Brett J. Schneider & Brooke P. Dolara
