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Critical developments in Labor and Employment law - Are you ready for April 30?
April 26, 2012
Employment Law Alert
Author(s): Kent Jonas

On Tuesday, April 24, 2012, the U.S. Senate voted down (54–45) a resolution disapproving of the National Labor Relations Board’s Final Rule revamping representation case election procedures.  The day before, President Obama issued a statement noting that he would veto the resolution if it were approved by both the Senate and the House of Representatives.

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On Tuesday, April 24, 2012, the U.S. Senate voted down (54–45) a resolution disapproving of the National Labor Relations Board’s Final Rule revamping representation case election procedures. The day before, President Obama issued a statement noting that he would veto the resolution if it were approved by both the Senate and the House of Representatives. Although the Final Rule is under legal challenge before the U.S. District Court for the District of Columbia, absent a last minute stay, it takes effect next Monday, April 30, 2012. Please review our previous alerts (see related link below) for more details regarding the contentious processing of the Final Rule.

The Final Rule will reduce dramatically the time between the filing of an election petition and the holding of the secret ballot election. Over the past years, the median time or “critical period” between the petition filing and the election has been 38–42 days. It is likely that the Final Rule will result in “quickie elections” by reducing the time between filing and election to as few as 8–10 days.  Unions begin their campaigns long before filing an election petition with the NLRB. Many employers are unaware until notified by the NLRB that the campaign or “critical period” has begun with the union’s filing of an election petition. Under the new Final Rule, employers unaware of the silent campaign will have very little time to prepare for and deliver their campaign communications. 

The Final Rule makes eight specific changes to representation case procedures:

  1. The purpose of the pre-election representation case hearing is redefined and limited to whether there is a question of representation and whether the unit is appropriate. Issues and evidence of unit placement (whether a particular individual is a covered employee or exempt supervisor) and other issues previously presented at such hearings will now be deferred until after the election and only considered if the NLRB determines such issues to be determinative. Unfortunately, in some cases, this will leave employers uncertain about who will be in or out of the unit if the union prevails and whether to rely on certain persons believed to be supervisors to assist management in responding to union campaign messaging and advocating on behalf of the employer.
  2. Hearing Officers presiding over pre-election hearings will be empowered to restrict the presentation of evidence supporting a party’s contentions regarding the question concerning representation—whether the petitioning union has made a demand for recognition that the employer has refused.
  3. Hearing Officers will have discretion regarding party requests to file post-hearing briefs, subjects to be addressed if briefs are allowed, and the time for filing briefs.
  4. Pre-election requests for review of a Regional Director’s Decision and Direction of Election following a pre-election hearing, if any, will now be deferred until after the election.
  5. The longstanding recommendation to delay scheduling an election until 25–30 days following the Regional Director’s Decision and Direction of Election is eliminated.
  6. Grounds for special permission to appeal to the NLRB are narrowed and deferred until after an election.
  7. NLRB review of election objections and outcome-determinative challenges in elections are now discretionary.
  8. NLRB Rules and Regulations Section 101, Subpart C are eliminated.

So . . . employers are advised to communicate with employees regarding their position on union representation routinely and continuously. Train your managers and supervisors.  Communicate your company’s views through a formal policy statement in the employee handbook, employee orientation, employee meetings, newsletters, and bulletin board postings. 

Be prepared, be ready, be safe. Communicate often.

Ideas


The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.