NLRB Issues Final Rule on “Quickie” Elections

The National Labor Relations Board on December 22 issued a final rule revising procedures in cases where a union files a petition for an election to determine whether it will become the exclusive collective bargaining representative of a unit of workers, according to a news release from the Associated General Contractors of America (AGC).  The effective date of the rule is April 30, 2012.

AGC says that the final rule is a limited version of a more comprehensive and highly controversial rule proposed by the board last June.  Critics dubbed the rule the “quickie” or “ambush” election rule because it would effectively expedite the union election process, limiting employers’ opportunity to communicate with workers about union representation and depriving employees of the ability to make a fully informed decision.  The board received more than 65,000 comments on the proposed rule, including objections submitted by AGC detailing how the regulation would detrimentally affect the construction industry.  In late November, the board passed a resolution that pared down the dozens of changes in the original proposal to about six procedural changes.  The final rule is based on that resolution.

The board asserts that the final rule will “reduce unnecessary litigation in representation cases,” enable the agency “to better fulfill its duty to expeditiously resolve questions concerning representation,” and “save time and resources for the parties and the agency.”  While the final rule is much less drastic than the proposed rule, it retains several changes to the current process, including:

  • limiting regional hearings to issues relevant to the question of whether an election should be conducted, allowing the hearing officer to exclude evidence regarding voter eligibility and other matters;
  • allowing hearing officers to decide whether and when to accept post-hearing briefs;
  • eliminating a party’s right to file a pre-election request for review of a regional director’s decision and direction of election, deferring all such requests until after the election; and
  • rendering Board review of a regional director’s resolution of certain election disputes only discretionary.

A technical summary of the changes is posted on the board’s website at http://www.nlrb.gov/node/3240.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, both of which AGC is a member, have jointly filed a lawsuit asking the U.S. District Court for the District of Columbia to enjoin enforcement of the rule and seeking a declaratory judgment that the rule violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act and the U.S. Constitution.

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