NLRB SEEKS TO CHANGE ELECTION RULES FOR THE SECOND TIME

NLRB SEEKS TO CHANGE ELECTION RULES FOR THE SECOND TIME

Today, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rule Making, proposing amendments to the regulations governing the filing and processing of petitions for election under the National Labor Relations Act. The proposed amendments are intended to streamline the processing of election petitions and significantly shorten the period of time between the filing of a Petition for Election and the holding of the election. The proposed amendments include:

• Permitting electronic filing of petitions;
• Requiring that pre-election hearings be held within 7 days after service of  a Petition for Election;
• Narrowing the scope and nature of issues that may be litigated at the pre-election hearing and eliminating the right of parties to file a post-hearing brief;
• Eliminating the right to appeal the Regional Director’s Decision and Direction of Election to the Board prior to the election; and
• Requiring that employers provide unions with the email address, work location and shift of each employee eligible to vote in the election within 2 days of the Regional Director’s Decision and Direction of Election.

The proposed amendments are the same amendments the NLRB proposed approximately 2 ½ years ago in June of 2011. At that time, the proposed amendments, commonly referred to by employers as the “Ambush Election Rules,” were vigorously opposed by employers. Employers perceived that the amendments placed them at an extreme disadvantage in union elections.

In response to the 2011 proposed rules the Chamber of Commerce of the United States and the Coalition for a Democratic Workplace (CDW) sued the NLRB claiming that the NLRB lacked authority to issue these rules. The Chamber and the CDW made several different arguments as to why the NLRB lacked authority to issue the rules.

In its Decision and Order the United States District Court for the District of Columbia addressed only one of these arguments. On May 14, 2012, the District Court concluded that the NLRB lacked the authority to issue these rules, because the final vote to approve and issue the rules, on December 16, 2011, was conducted without the statutorily required three member quorum and thus, the act was an “invalid.” Chamber of Commerce of the United States of America, et al v. National Labor Relations Board, CV No. 11-2262 (Boasberg, J.)

The District Court emphasized however, that its decision was not necessarily the death knell for future proposals of the same rules.

The Court does not reach—and expresses no opinion on—Plaintiffs’ other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful. As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.

Id.

And today, the NLRB did just that.

There will be a 60 day comment period followed by a public hearing prior to the NLRB’s decision as to whether to formally adopt the amendments. If adopted, the new rules will again become subject to challenge in the federal courts.

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We hope you find this issue of KKAL’s Labor and Employment Law Watch helpful and informative.  Please understand that the Law Watch is designed to provide information about current developments and required actions. If you have any questions regarding any labor and employment law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717-392-1100, or email us at the following addresses: