National Labor Relations Board Issues new Rules Designed to Speed up Union Elections

On December 21, 2011, the National Labor Relations Board (NLRB) issued final amendments to the procedures governing union representation elections. These amendments become effective on April 30, 2012. Employer groups have asserted that the changes allow unions to “ambush” businesses with union elections and force employees to make quick, uninformed decisions about whether to unionize. Union advocates, on the other hand, claim that the amendments will prevent unnecessary litigation and remove what they believe to be unnecessary delays in effectuating an “employee’s free choice” to unionize.

The amendments eliminate the pre-election appeals process, such that an employer can no longer appeal its election dispute to the NLRB prior to the election. This appellate process had guaranteed a timeframe of at least 32 days between a union election petition and the date of a union election. With the amendments, the U.S. Department of Labor’s (DOL’s) regional director will have complete authority to set the timeframe for an election. According to U.S. Representative John Kline (R-Minn.), the amendments would allow an election to occur in as little as 10 days after an election petition is filed.

Employer groups have complained that limiting this “critical period,” or the time between the filing of a petition and the election, could prevent an employer from fully informing its workforce about the impact of unionization. Further, they argue that sufficient time to hear from all sides is critical because the consequences of a union vote are not short-lived and could significantly affect an employee’s livelihood.

Almost immediately after the final amendments were issued on December 21, 2011, the ranking member of the U.S. Senate’s Health, Education, Labor and Pensions Committee, Senator Mike Enzi (R-Wyo.) announced that he would introduce a resolution of disapproval under the Congressional Review Act (CRA). If passed, this resolution would block the DOL from implementing the amendments. Action under the CRA cannot be filibustered, needs only a simple majority to pass, and must be called within a 60-day window. Opposition to the amendments is also present in the U.S. House of Representatives, where members voted on November 30, 2011 to pass the Workforce Democracy and Fairness Act, which would prohibit unions from holding a representation election until at least 35 days after filing a petition (H.R. 3094). Other opponents of the amendments include the U.S. Chamber of Commerce, which filed a federal lawsuit against the Board in the District of Columbia on December 20, 2011, seeking to prevent the enforcement of the amendments (Case No. 11-cv-2262).

The NLRB will begin 2012 without a quorum, as only two members will remain on the five-person board in the new year. The length of time the NLRB will remain without a quorum is questionable, as President Obama is set to appoint two new members, Richard F. Griffin (General Counsel for the International Union of Operating Engineers) and Sharon Block (DOL’s Deputy Assistant Secretary for Congressional Affairs) in the new year, while the President’s previous appointment of Terrance Flynn (R) in early 2011 has not been acted on by the Senate. With legal and Congressional challenges to the amendments in the works and possible “recess appointments” to the Board, employers are encouraged to keep a watchful eye on the NLRB’s activity in the upcoming year.

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