12.26.2011 Gauntlet Thrown: Controversial NLRB Rule Prompts Legal Battle
The National Labor Relations Board yesterday issued new amendments curtailing employers’ ability to challenge election procedures. The Board’s rule is the latest development in a highly contentious process, and moves the battle from the administrative arena to the courtroom.

The final rule was approved by two of the three sitting members, NLRB Chairman Mark Gaston Pearce (D) and Member Craig Becker (D), with Member Brian E. Hayes (R) vehemently opposed. The final rule, set to go into effect on April 12, 2012, will make the following alterations to the Board’s pre-election procedures:

  • Board regulations will state that the purpose of a pre-election hearing is to determine whether a question concerning union representation exists that should be resolved in a secret ballot election;
  • NLRB hearing officers will have the authority to limit the presentation of evidence at pre-election hearings to “genuine issues of fact material to the existence of representation questions;”
  • Parties will no longer have a right to file Post-hearing briefs; they may only do so with the permission of the hearing officer;
  • Parties will no longer have the right to seek review of a regional director’s pre-election unit and eligible voter rulings while allowing parties to seek post-election review of issues that have not been rendered moot by the election;
  • Elections can be set fewer than 25 days from the issuance of a regional director’s decision and direction of an election;
  • The right of special appeals of a regional director’s election unit rulings will be limited to extraordinary circumstances; and
  • Board review of postelection disputes will be discretionary.

In the Board’s view, these amendments are designed to “reduce unnecessary litigation and delays.” In the view of many employers, however, the rules are designed to silence employers and sharply reduce their pre-election due process.

The issuance of this final rule marks the conclusion of a contentious administrative process that started with even more drastic proposals. In a recent client alert, we discussed the turbulent process that led to the current rule [Client Alert: NLRB Election Rule Update – A Last Minute Dash to the Finish Line?]. As of yesterday, this fight moves to the legal arena. Indeed, as soon as the rule issued, the U.S. Chamber of Commerce and Coalition for a Democratic Workplace filed lawsuits in federal court challenging it. The lawsuit seeks an injunction blocking the rule on the grounds that, among other things, its issuance exceeded Board authority, violated the first and fifth amendments, and was arbitrary and capricious. Republican leaders in the Senate and House have also vowed to oppose the measure.

If the rule goes into effect on April 12, it will have huge ramifications for employers facing the prospect of Union elections. Employers should continue to voice their opposition to these measures, but also prepare contingency plans should it go into effect.

For more information about this topic, please contact the author or any member of the Williams Mullen Labor & Employment Team.