On Monday, April 30, 2012, the National Labor Relations Board’s new election rules took effect shortening the time between the filing of a petition and the holding of a union representation election. Specifically, the new rules provide that:

a) hearing officers have greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”;

b) hearing officers have the discretion to deny requests by parties to submit post-hearing briefs;

c) the parties no longer have the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election;

d) the 25-day period between the issuance of a decision and direction of election by a regional director and the holding of an election is eliminated;

e) a party’s ability to seek special permission to appeal a hearing officer ruling to the Board is clarified; and

f) the Board has the discretion to refuse to review a regional director’s resolution of post-election disputes.

In addition to the new rules, the Acting General Counsel for the NLRB recently issued a memorandum outlining the new election procedures as well as establishing new "best practices" not contemplated in the Board’s new election rules. These new "best practices" are also designed to shorten the time between the filing of a petition and the election. As a result, elections can be held as soon as 18 to 24 days after the petition is filed — potentially even sooner.

The new election rules were published on December 22, 2011, but Member Brian Hayes asserts that the Board’s majority intentionally:

breach[ed] the Board’s internal operating rule and, for the first time in the history of this agency, [did not] allow the requisite time for preparing or circulating a dissent.

On April 30, 2012, the NLRB finally published Hayes dissent, in which he states that:

It is my personal view, shared by many of the thousands of commenters to the [rule], that my colleagues’ Rule contravenes the Act and the Constitution. In whole and in several parts, in substance and in the process used to adopt it, it also reflects arbitrary and capricious decisionmaking that requires invalidation on judicial review. Finally, as with recent adjudicatory actions, this rulemaking action represents an abdication of the Board’s representation case duties and reflects a compulsive effort by my colleagues to favor union organization over all opposition, no matter its legitimacy or statutory protection.

In addition to Hayes’ dissent, the NLRB’s new election procedure has faced both legislative and legal challenges. Late last year, the House of Representatives passed John Kline’s (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094), which would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights. The Senate recently voted on a Resolution of Disapproval aimed at prohibiting the NLRB from implementing the new election rules. However, the Senate rejected the resolution by a vote of 54-45.

A lawsuit filed by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace is pending in federal court challenging the new election rules. They argue that the Board’s new rules are invalid because:

  • two Board members denied the third member the opportunity to fully participate in the rulemaking, thus denying the Board an official quorum;
  • the actions taken to hasten adoption of the rule violated the Administrative Procedure Act (APA) by arbitrarily and capriciously failing to follow well-established Board practice; and
  • the new rule is substantively inconsistent with Sections 3 and 9 of the National Labor Relations Act.

In February 2012, the parties filed cross motions for summary judgment, and the federal district court will issue its ruling on the merits by May 15, 2012. At least until then, the new rules remain in effect as the court has refused to issue a stay pending its ruling.

Employers must continue to monitor developments. In the event the new rules are upheld, employers will have considerably less time to talk to employees regarding the issue of union representation before an election once a union petition is filed.  Employers will need to assess and adjust perspectives, operational strategies and communications accordingly.