Supreme Court Rules that Obama Recess Appointments Invalid

In a major decision yesterday, the U.S. Supreme Court held that the recess appointments President Obama made to the NLRB in January 2012 were unconstitutional. The case related to the appointments of three members of the NLRB on January 4, 2012, during a period of time in which the U.S. Senate was in an intra-session recess, punctuated by "pro-forma" sessions every three days. One such session had been held on January 3 and another was scheduled for January 6.

The Supreme Court unanimously concluded that the appointments were invalid, although the reasoning for that conclusion split the Court into two camps. The majority view would permit some intra-session appointments, but held that in this case the three day break was not long enough to trigger the President's recess appointment power. The concurring view was that there could be no recess appointments during an intra-session recess, and that only positions that became vacant during that recess could be filled by the recess appointment power.

While the constitutional scholar will spend many hours parsing the decision (and there is plenty of decision to parse, with the opinions in the case running over 100 pages), the implications for labor professionals are more practical. These include:

  • All opinions decided by the NLRB during the period from January 2012 to August 2013 are suspect. Given the invalidity of the recess appointments, there were not enough properly appointed and confirmed NLRB members to lawfully issue decisions.
  • The last time a group of NLRB decisions were invalidated by a Supreme Court ruling, involving whether two members the NLRB could properly conduct its business, the NLRB set up a process for reviewing these decisions and ultimately affirmed the outcome of those decision in the vast majority of cases.
  • Some very significant decisions are potentially in question. These include, among others, the NLRB's first Facebook termination case, a case addressing whether the employer has the right to suspend dues check off when a union contract expires, and the decision limiting an employer's confidentiality instruction to employees during a workplace investigation.
  • With the need to reassess these and many other cases, the NLRB's agenda on other items may be slowed. For example, the resources necessary to reexamine the numerous decisions invalidated by yesterday's ruling may cause the NLRB's "ambush" election rule to be delayed.

While the NLRB's Chairman made a brief statement yesterday, the NLRB has not yet announced how it will address the Court's ruling.

Take Two: NLRB Begins its "Do Over" on Union Election Rules

As expected, the NLRB has again proposed to amend various procedural rules that relate to the way in which union election petitions are processed. These changes are primarily designed to speed up the processing of requests for secret ballot elections. They are widely regarding in the employer community as the "quickie" or "ambush" election rules.

The procedural history of this rulemaking effort begins in 2011 when the NLRB proposed numerous changes to the union election rules.   After receiving extensive public comment, and holding public hearings, the NLRB adopted a subset of the proposed rules on December 22, 2011.  Employer groups then challenged the rule in federal court.  The court held that the NLRB lacked a quorum when it issued the final rule because then Member Hayes (R) was absent from the vote.  While the NLRB appealed the ruling, it ultimately decided to withdraw that appeal and return to the rulemaking process.

The notice of proposed rulemaking issued by the NLRB last week is a nearly verbatim recitation of the 2011 proposal.  It updates some of the data that the NLRB relied upon in 2011.  It also includes a new dissent to the rulemaking effort written by Members Miscimarra (R) and Johnson (R), and a new response from the NLRB majority to that dissent.  Otherwise, the changes proposed are the same.

Some of the changes the NLRB is proposing include:

  • Permitting the filing of petitions for election electronically with the NLRB;
  • Requiring the union's showing of interest (usually, signed union authorization cards) to be filed with the petition, rather than permitting an additional 48 hours for the submission of such evidence;
  • Requiring that the employer provide to the union, in addition to the names and addresses of employees in the bargaining unit, the email address (if available), location, shift, and classification of each employee;
  • Shortening the period of time for making available the foregoing information about employees from seven days to two days;
  • Requiring that the representation case hearing begin on the seventh day after filing of the petition;
  • Adopting a new "Statement of Position" form in which the parties explain their respective position on any issues relating to the petition (e.g., exclusion of individuals as supervisors or the appropriateness of the unit), and further providing that failure of a party to complete the Statement of Position would constitute a waiver of the right to litigate any issue not identified;
  • Delaying until after the election resolution of certain questions about the eligibility of or inclusion of employees in the bargaining unit, provided that the numbers affected by such questions do not exceed 20% of eligible voters;
  • Limiting the types of evidence that can be introduced at the representation case hearing;
  • Limiting the opportunity to file written briefs after the close of the representation case hearing;
  • Eliminating the right of a party to request that the NLRB review decisions of the Regional Director regarding the representation petition; and
  • Requiring that a party filing objections to the election results submit their objections, and the evidence supporting those objections, within seven days after the votes have been counted.

For the labor professional, the NLRB's changes are quite significant.  For some of the changes, their significance is easy to grasp.  For example, the substantial expansion of the information about employees that the employer must provide to the union after a petition is filed is one that helps unions in their organizing efforts.  Other changes, while more procedurally obscure, are substantively even more troubling.  For example, limiting the resolution of questions about the unit means that employees, when they go to vote in a secret ballot election, may not understand with any degree of certainty with whom they are banding together to negotiate with their employer. 

Those desiring to comment on the proposed rulemaking have until April 7, 2014 to do so.

NLRB Abandons its Appeal of Union Election Rule Decision, May Re-issue Challenged Rule

By Nelson Cary and Michael Shoenfelt

Earlier this week, the NLRB voluntarily dismissed its appeal of a 2012 decision invalidating a rule designed to “streamline” union elections.

Commonly known as the “ambush” or “quickie” election rule, the rule would have significantly decreased the amount of time between the filing of a petition to unionize with the NLRB and the employee’s secret ballot vote. It also limited the scope of the pre-election hearing and reduced employers’ ability to file post-hearing briefs and appeals.

ballot boxA federal district court initially invalidated the rule because the NLRB lacked a quorum when it issued the rule. In December 2011, when the NLRB voted to adopt the rule, the NLRB had only three of its five seats filled. Only two of those three members took part in the electronic vote on the rule. While the two votes would have been enough to pass the rule, the district court held that the absence of the third member was fatal for purposes of establishing quorum. 

The NLRB appealed that decision to the court of appeals. The appeals court had placed the case on hold in light of the dispute over the NLRB recess appointees. The NLRB got out of that waiting game by voluntarily dismissing its appeal Monday.

The NLRB's decision to drop the appeal, however, is not a victory for employers.  Instead, it merely sets the stage for the next act in this drama.  The NLRB has five members now for the first time in more than a decade, and is expected to re-issue the rule, or a similar rule.  Labor professionals should keep an eye on that process, as the NLRB is free to act on its previously-expressed intent to implement changes that go even further in “streamlining” elections that the rule that was the center of this dispute.

Acting General Counsel Releases Report on FY 2012 Operations

Last week, the NLRB's Acting General Counsel Lafe Solomon released his annual Summary of Operations (pdf). The memorandum summarizes the activities of the General Counsel's office, which is responsible for the investigation and prosecution of unfair labor practice charges and the handling of representation cases.  Representation cases are requests from a union, employee, or employer to conduct a secret ballot election to determine whether employees desire union representation.

As was the case last year, the AGC's report seems to undermine the case for the NLRB's continued focus on rulemaking that would speed up the election process. The median number of days it takes from filing of an election petition to conducting the secret ballot election was 38, the same as FY 2011, and "well below" the AGC's target of 42 days. Moreover, there were only 169 contested representation cases, out of total representation case intake of 2,646 cases. Finally, the number of representation elections conducted within 56 days of the filing of the petition increased in FY 2012 to 93.9%, again above the AGC's target of 90%.

Another striking statistic in the AGC's report is that representation case intake declined again in FY 2012. Following a 12.2% decline in FY 2011, the total number of representation cases filed in FY 2012 declined another 6.5%. The U.S. Bureau of Labor Statistics is scheduled to issue its report on union membership on January 23, 2013.  With fewer representation cases at the NLRB, it would be surprising to see a significant increase in the number of union members in the private sector.

Other notable pieces of information in the report for the labor professional include:

  • Fewer unfair labor practice charges were filed in FY 2012, with case intake declining 3%;
  • If your employer was the subject of an unfair labor practice charge, there was a slightly better than 1 in 3 chance that the NLRB regional office found merit in the allegation, down slightly from FY 2011;
  • When the regional offices find merit in the charge, the party alleged to have violated the NLRA settled the charge in 91% of all cases in FY 2012; and
  • Recoveries by the NLRB on behalf of employees fell to approximately $44.3 million, down from over $60 million in FY 2011, and the number of employees for whom reinstatement was obtained likewise fell to 1,241 from 1,644.


NLRB Responds to Court's Decision on Election Rule

The NLRB responded to the decision of Judge Boasberg today.  In a press release, the NLRB announced that it will suspend implementation of the election rule.  Acting General Counsel Lafe Solomon has also withdrawn the memorandum issued to the regional offices at the end of last month explaining how to implement the rule.  Finally, Chairman Pearce (D) said that the NLRB was reviewing the court's decision and considering how to respond. 

Labor professionals with election petitions that were filed on or after April 30 should review the press release.  It contains information on how the NLRB will process these cases.

Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB's election rule invalid.  Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.  

When the final rule was approved last December, Member Hayes (R) did not vote on it.  Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule.  While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court's view.  Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace.  The judge held that elections must continue to be conducted under the old rules.  The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again.  The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court's ruling may ultimately just delay the adoption of new election rules.  The NLRB now has a full five members, although there is controversy surrounding those appointments.  Another vote on the rule will present an opportunity to challenge the appointments in court.  Judge Boasberg's decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court's decision, then, likely removes the immediate concern employers had with the adoption of the election rule.  It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor.  The NLRB may announce its position on the decision soon.  If so, the NLRB's position will be covered in this blog.

AGC Issues Guidance on New Election Rules; Court Denies Motion to Stay

With the effective date of the NLRB's new election rules now less than 48 hours away, the NLRB's Acting General Counsel (AGC) continues his implementation efforts.  On Thursday, the AGC issued a memorandum (pdf) to the various regional offices of the NLRB containing additional information interpreting the new rule.  It also contains implementation instructions for the regional offices.

The memorandum is quite lengthy and detailed.  Perhaps the most interesting issue for the labor professional, however, is the guidance the memorandum contains on how regional offices should exercise the discretion the new rule gives them on limiting issues that can be litigated in the initial representation case hearing.  It was this litigation, among other items, that the NLRB majority believed to be unnecessary and slowing down the election process.  Thus, the NLRB's rule announced that "ordinarily" disputes over eligibility to vote or inclusion in the bargaining unit need not be resolved before the election is held. 

The AGC defined "ordinarily" by reference to the number of possible employees impacted by the eligibility or inclusion issue.  If 10% or more of the employees in the particular unit are impacted, the question could be addressed in the representation case hearing. 

The AGC also specifically commented on the issue of deciding which employees are supervisors.  The memorandum makes clear that these questions are subject to the rule.  Thus, if there are only a small number of employees who are claimed to be supervisors, the regional office has the discretion to refuse to decide those questions until the election has taken place.

In related developments, Chairman Pearce (D) issued a concurring opinion and Member Hayes (R) issued a dissenting opinion about the new rule yesterday. These opinions continue to debate the questions that have been presented to the court in the Chamber's lawsuit. 

In addition, the federal court handling the Chamber of Commerce's lawsuit challenging the rule denied a motion filed by the Chamber to prevent the rule from going into effect.  In his ruling earlier today, the judge stated that he would issue his opinion on the merits of the rule before May 15, 2012. 

In light of these developments, labor professionals should review the guidance from the AGC, or discuss it with their labor counsel, to determine how it will impact their operations.  The AGC's guidance and the NLRB's rule is very technical and detailed.  Even the FAQs the AGC issued are lengthy, although not quite as technical as the memorandum itself.  It is quite likely, therefore, that the guidance will effect employers in different ways.  In addition, labor professionals will want to watch closely for the court's ruling in the Chamber's lawsuit.  That ruling will be reported on this blog.

Highlights From Acting General Counsel's Annual Operations Summary

Last week, AGC Lafe Solomon issued his annual summary of operations (pdf) for FY 2011. The summary reviews the various functions of the Acting General Counsel's office, which include conducting secret ballot union elections and investigating and prosecuting unfair labor practice charges against employers and unions.

Of the information reported, perhaps the most interesting given the NLRB's current regulatory efforts was the data on union representation elections.  The AGC reported that 91.7% of all union representation elections were completed within 56 days of filing the election petition.  Moreover, the median time taken to conduct the union election was 38 days from the filing of the petition.  Of the elections conducted, 89% were held pursuant to agreement of the parties.

Despite the speed with which regional offices conduct union elections, the NLRB continues to explore administrative rulemaking designed to accelerate the election cycle.  Moreover, in the face of evidence that the vast majority of elections are held pursuant to an agreement (i.e., without any litigation or disputes), the NLRB's rulemaking process targets the elimination of various procedures the NLRB says lead to litigation that slows down the election process.

The AGC also reported that total case intake for union election petitions was down in FY 2011 by 12.2%.  This statistic is particularly striking given the continuing weakness in union membership data.  The Bureau of Labor Statistics reported earlier this year that union membership stood at 11.8% of the total workforce, and only 6.9% of the private sector workforce.  Given these numbers, a decline in representation petitions (one way in which unions can increase membership) is unexpected. 

Other highlights from the report of interest to the labor professional include:

  • Total intake of all types of cases during FY 2011 was down 5.9%.
  • Of the 22,177 total unfair labor practice cases filed in FY 2011, the AGC found that additional proceedings were warranted in 37% of them.
  • The number of unfair labor practice complaints (which required the employer or union to defend its conduct before an administrative law judge (ALJ)) issued in FY 2011 increased to 1,342 cases.
  • The AGC won 87% of all the cases litigated before the NLRB or an ALJ.
  • The amount of backpay, fees, dues or fines recovered on behalf of employees was down significantly from FY 2010 at a total of just over $60 million.  The figure in 2010 was over $85 million.

NLRB Election Process Rulemaking: It's Not Over Until It's Over

The NLRB published a final rule on the election process late last year.  In doing so, however, the final rule left out a number of changes to the election process that were originally proposed in June 2011.  For example, there were proposed changes to the requirements to provide lists of employee names and contact information after an election petition is filed, the timing of providing that list, and other issues.  As previously explained, the NLRB announced last month that it would keep these additional changes to the election rules under consideration for possible future action.

In an interview published by the Associated Press yesterday, NLRB Chairman Pearce (D) confirmed his intention to continue pushing forward with these additional regulatory proposals.  "We keep our eye on the prize," the AP quotes Chairman Pearce as saying. "Our goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayers."  Chairman Pearce announced his hope that the NLRB will propose the rules "soon," according to the AP.

For the labor professional, this most recent development confirms that there is likely more rulemaking yet to come on the so-called "ambush election" or "quickie election" rule.  This announcement does not, however, alter the currently announced effective date for the final rule published last month on the election process.  It is still scheduled to become effective on April 30, 2012.

Details of NLRB Election Rule Published; Chamber Files Lawsuit

By Nelson Cary and Micah Dawson

Earlier today, the NLRB formally published their new election rules in the Federal Register.  Chairman Pearce (D) and Member Becker (D), whose term ends next week, voted in support of the new rule. Member Hayes (R) withheld his vote. Member Hayes can vote against finalizing the rule and publish a statement of dissent any time before the rule takes effect on April 30, 2012.

As expected, the new rule makes significant changes to union election procedures, including:

  • Empowering the hearing officer to limit evidence produced at the initial hearing to only that necessary to determine whether a question concerning representation exists;
  • Eliminating the automatic right to file briefs with the regional director after the initial hearing;
  • Eliminating a party's right to appeal the regional director's determinations to the NLRB prior to the election, and providing for only a single appeal, after the election, and then only over issues that the election hasn't rendered moot;
  • Eliminating language in the NLRB's regulations providing that elections are typically not scheduled for a date sooner than 25 days after the election petition has been filed;
  • Clarifying the standard for seeking special permission to appeal to the NLRB from a regional director's decision; and
  • Making NLRB review of the regional director's decisions discretionary, rather than mandatory.

The rule, which has increasingly been referred to as the “ambush election” rule by those opposed to it, significantly limits employers’ legal right to object to the petitioned-for unit prior to a union election.  By shortening the amount of time between petition and election, it also curtails employers' ability to communicate with workers during the union election process.  With less ability to communicate, the rule limits the time during which an employee is certain to hear both sides of the story:  both the case for and the case against union representation.   

Even before the NLRB announced that it would publish this final rule, the U.S. Chamber of Commerce sought to nullify it.  On December 20, 2011, the Chamber filed a federal lawsuit challenging the new rule. The lawsuit attacks the validity of the new rule, stating that it violates Board procedure and denies employers' free speech rights. In addition to asking the court to vacate the rule, the Chamber’s lawsuit (pdf) seeks a preliminary injunction barring the rule from being enforced.

For the labor professional, the final rule is a major development.  Employers that are currently non-union should carefully consider the implications of the rule in light of their individualized circumstances.  Those employers may want to revisit their strategies given this development. 

The Chamber's lawsuit adds an additional level of complexity for the labor professional.  After business groups filed court challenges against the NLRB's notice posting rule, the NLRB delayed the effective date of that rule.  It is uncertain whether a similar delay will be announced here, given that the NLRB is at risk of losing one of its three members, and thus being unable to act.

NLRB Adopts New Election Rules Adopted

The NLRB announced today that it has formally adopted the revisions to the election rules that were originally proposed earlier this year.  The official notice will be published in the Federal Register tomorrow.  The rule, which some have referred to as the "quickie" or "ambush" election rule, will become effective on April 30, 2012.  Stay tuned to for additional details about the final rule.

Hayes Stays: NLRB Moves Forward with Election Rule

The NLRB headed into a public vote today over a proposed rule on election procedures summarized yesterday on this blog.  It did so without assurances that one of its members, Brian Hayes (R), would be present. While tensions were high, Member Hayes did attend the meeting and the NLRB voted along party lines, 2-1, to move forward with the slimmed down, but still controversial, election rule proposal. As the lone dissent, Member Hayes again made it clear that he opposed the short time frame for elections under the proposal. Despite that opposition, the final language of the rule will now be drafted for another NLRB vote before it goes into effect. 

Although there was information suggesting that Member Hayes was seriously considering resigning in an effort to eliminate the NLRB’s power to move forward on the proposal, he has apparently decided against resignation. Member Hayes explained at the meeting that “it is not my nature to be obstructionist.” Further, he believed that “resignation would cause the very same harm and collateral damage to the reputation of this agency” as the rule changes the majority voted to advance.

With Hayes staying put, labor professionals should stay alert for the final language of the rule, as it is certain to have a impact on employer policies.  Nor should labor professionals expect any legislative change from Congress that would trump the administrative rule.  Although the U.S. House voted today to approve legislation that would do so, the prospects of that legislation appear dim in the Senate.

NLRB Chairman Pearce Announces Content of Election Rule Proposal

As reported on this blog last week, the NLRB will meet tomorrow to consider a resolution on the rule it proposed in June 2011.  Today, Chairman Pearce (D) made public the resolution (pdf) that will be voted on at tomorrow's meeting.  In doing so, the Chairman has disclosed what was left unanswered in the announcement of the meeting last week:  what will the final rulemaking contain?  According to the resolution, and the NLRB's accompanying explanation, the resolution would commit the NLRB to moving forward on six changes to the NLRB's rules:

  • Limiting evidence produced at the initial hearing to only that necessary to determine whether a question concerning representation exists;
  • Eliminating the automatic right to file briefs with the regional director after the initial hearing;
  • Eliminating a party's right to appeal the regional director's determinations to the NLRB prior to the election, and providing for only a single appeal, after the election, and then only over issues that the election hasn't rendered moot;
  • Eliminating language in the NLRB's regulations providing that elections are typically not scheduled for a date sooner than 25 days after the election petition has been filed;
  • Clarifying the standard for seeking special permission to appeal to the NLRB from a regional director's decision; and
  • Making NLRB review of the regional director's decisions discretionary, rather than mandatory.

These six changes are in line with the NLRB majority's desire to "streamline" the NLRB's election petition process. The result is to speed up the time between the filing of an election petition and the holding of a secret ballot election. This has caused many to refer to the rulemaking as the NLRB's "quickie election" rule.

As the effort to finalize these regulations moved forward, Member Hayes (R) wrote a letter to Congressman John Kline, Chairman of the U.S. House Committee on Education and the Workforce, in response to a request by Kline for information from the NLRB. Hayes was critical of the rulemaking process in this letter. When Hayes' letter became public, the Chairman responded with a scathing letter to Hayes, rebutting the statements contained in Hayes' letter. A good summary of these unusual letters can be found here.

The originally proposed rule contained a number of additional changes that the NLRB has apparently decided it will not pursue at this time.  For example, the NLRB's resolution does not address the original proposal to:

  • Require a position statement before the initial hearing summarizing all of the parties' issues;
  • Require that the initial hearing be held within seven days of the date the petition is filed;
  • Require that the eligible voter list be produced within two days, rather than the seven currently required; and
  • Require that the eligible voter list contain employee e-mails and phone numbers, in addition to addresses.

It appears that the NLRB will, however, continue to deliberate over the other portions of the proposed rule.  This leaves open the possibility that the other changes proposed in June could yet find their way into the NLRB's regulations. 

For the labor professional, the NLRB's resolution reveals the agency's desire to get at least some final rule published prior to the end of the year.  Indeed, the NLRB's explanation specifically references the "possibility that the Board will lose a quorum at the end of the current congressional session. . . ."  By slimming down the proposal, the NLRB can move the proposal to a final rule more quickly while still leaving on the table the other changes proposed. 

There is a wild card still in play that is important to note.  The Hayes/Pearce letters reveal that Hayes has threatened to resign.  If he did so, it would take the NLRB down to only two members.  This would likely deprive the NLRB of the necessary quorum to adopt the final rules.

Finally, the NLRB's announcements today do not reveal the actual language of the amendments.  They simply summarize which portions of the regulations will be changed.  Thus, the full impact of the proposed changes is difficult to assess.  It is clear, however, that for those on the management side, the changes will not be welcome.

NLRB to Vote on Election Process Rule

The NLRB announced yesterday that it will hold a public meeting on November 30, 2011.  At the meeting, the three remaining NLRB members will discuss and vote on the so-called "quickie election" rule that the NLRB proposed in June 2011.  As previously discussed on this blog, the changes in the proposed rule range from permitting electronic filing of certain documents (hardly the most controversial measure in the proposal) to limitations on a party's right to litigate certain voter eligibility and other issues at the outset of the representation election process.  

According to the NLRB's announcement, Chairman Pearce will propose issuing a final rule that is limited to "several provisions designed to reduce unnecessary litigation."  Which specific provisions in the proposed rule those might be are unclear from the announcement. The limitations on so-called "unnecessary" litigation, however, are the more controversial proposals in the rule.

The NLRB's action comes the day after the U.S. House of Representatives took action to move a bill designed to forestall parts of the proposed rule to the full House for a vote.  H.R. 3094 (pdf), entitled the "Workforce Democracy and Fairness Act," cleared the House Rules Committee on November 17.  That bill would amend the NLRA to provide, among other things, that there must be a minimum of 35 days between the filing of an election petition and the holding of an election.

Although the NLRB's announcement does not reference H.R. 3094, it does acknowledge the possible loss of the NLRB's third member at the end of the year.  If the NLRB drops to two members (Member Becker's recess appointment expires at the end of this year), it will be unable to issue decisions or new regulations, as the Supreme Court ruled in 2010.

Labor professionals wishing to attend the NLRB's meeting must contact the agency via e-mail.  Those attending, however, will not be permitted to participate.  The hearing will also be webcast.  Additional information about the NLRB's action can be found in its announcement.

NLRB Announces Open Meeting on Proposed Rulemaking on Election Process

The NLRB has announced that it will hold an open meeting on July 18, 2011 to consider input from interested parties about its recently proposed rule on the election process.  The meeting will take place at the NLRB's headquarters in Washington, D.C. and will begin at 9 a.m.  Those interested in attending, or making a presentation, must notify NLRB staff no later than 4 p.m. this Friday, July 1, 2011.  Labor professionals seeking additional information about the meeting can locate details in the Federal Register or on the NLRB's website.

Proposed Rule Hastens Union Election Process

It is only Wednesday, and yet the week has still been a tough one for employers concerned about union-related issues. On Monday, the U.S. Department of Labor proposed a new interpretation regarding persuader activity. Then yesterday, the NLRB announced a proposed rule that will significantly change, and likely accelerate, the union election process. The official publication of the NLRB’s proposal will take place today.

The Notice of Proposed Rulemaking (“Notice”) maintains that “the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation.” Through the proposed amendments, the NLRB intends to fix perceived flaws in the NLRB’s current election procedures that, according to Chairman Liebman (D), build in unnecessary delays, encourage wasteful litigation, reflect old-fashioned communication technologies, and allow haphazard case-processing. 

Member Hayes (R) vigorously dissented (pdf) to the issuance of the Notice. Characterizing the proposed amendments as championing “a belief that employers should have little or no involvement in the resolution of questions concerning representation,” Hayes warned that the proposed changes would amount to a union-friendly “quickie election” option in which elections would be held in 10 to 21 days after the petition’s filing. 

The Notice presently contains no specific deadline by which a union election must be held following the filing of an election petition. Yet, any shortened timeframe between a petition and an election may stymie employer efforts to convey the company’s perspective to employees. In contrast, the union has likely communicated with employees for some period of time before an election petition is even filed. This truncated employer messaging timeframe concerned Hayes, who wrote, “[m]ake no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” 

According to an NLRB fact sheet, if adopted the proposed amendments would also:


·         Standardize and accelerate timeframes for parties to resolve or litigate issues before and after elections.

·         Require parties to identify issues and describe evidence soon after an election petition is filed, or forfeit the right to raise those issues later.

·         Defer litigation of most voter eligibility issues until after the election.

·         Require employers to provide a final voter list in electronic form much earlier than under current law, and require that list to include voters’ telephone numbers and email addresses when available.

·         Consolidate all election-related appeals to the NLRB into a single post-election appeals process.

·         Make NLRB review of post-election decisions discretionary rather than mandatory.


The NLRB’s proposed process changes could significantly impact an employer’s approach to a union election. Some of the changes and their effect, like the new eligibility list requirements, are straightforward. The impact of other changes may not be as immediately obvious. For example, deferring certain voter eligibility questions until after an election could introduce substantial uncertainty during the campaign process.

Finally, although the proposed regulations do not implement the precise types of changes EFCA would have brought, they clearly are designed to speed up the election process. Like EFCA’s card check, a quicker election process favors unions over employers. Thus, labor professionals will want to carefully review all of the proposed changes to determine how each may impact their organization’s own, unique circumstances. If an employer or industry/trade association wants to provide comments on the rules, they may do so at for the next 60 days.