NLRB Finalizes Rule for Quicker Elections

by Joseph "Trey" L. Wood, III

In our June 25 posting titled "NLRB Again Flex's Its Muscle," we made you aware of the NLRB's proposed changes to its rules governing union elections. The proposed rules would restrict an employer's ability to successfully stage its own campaign in opposition to a union's organizing efforts. As expected, on December 21 the NLRB published its final rule just prior to the Board's losing one of its most controversial, pro-union members, Craig Becker. While the final rule is not as punitive for employers as rules proposed in June, some key highlights to the rule include the following:

• Employers will no longer be entitled to a hearing to determine who votes. This does away with the parties' right to a pre-election hearing to determine the voting unit. Under the new rule, challenges to voters would (most of the time) be challenged at the polls and then litigated afterward. This could potentially discourage voter turnout, particularly among those who tend to side with the company;
• Eliminates the recommendation that regional directors should not schedule elections until at least 25 days after their decision to allow for sufficient time for review by the NLRB; and
• Limits the bases upon which the NLRB will consider a request for special permission to appeal extraordinary circumstances when the issue of the appeal would otherwise evade review.

Given these changes, union elections will now take place within 21-25 days of the filing of a petition, rather than 42 days under the old rules. As a result of these changes, employers will need to be more proactive in educating their employees about the consequences of union representation, and educate supervisors to be more attentive to the signs which may point to union organizing activity. While certain trade organizations have sued the NLRB over the propriety by which the rules were enacted, the new rules are currently set to become effective on April 20, 2012.