NLRB Amended Election Rules Take Effect Today after Senate Refuses to Block Rules

Last week a Republican-backed resolution to prevent the NLRB from implementing its new election rules was defeated in a U.S. Senate vote, by a margin of 45 to 54, largely along party lines. Sixty votes were needed to bring the resolution to the Senate floor. In December the NLRB issued a final rule that will dramatically expedite union elections. The final rule can be found at www.federalregister.gov/articles/2011/12/22/2011-32642/representation-case-procedures.

As a result, the Board’s amended election rules take effect today, April 30, and will limit the scope of pre-election hearings to determining whether a question concerning union representation exists within the meaning of the NLRA. The NLRB’s final rules do not mandate elections within 7 days of a petition, unlike the initial version of the rules, but the final version allows the time for elections to be 20-25 days after the petition is filed, a 50% reduction in the time that management has to communicate a lawful election campaign message to its employees. Other issues that would also traditionally be resolved before an election, including the eligibility of individual employees to vote, will be resolved only in post-election review proceedings.

With efforts in Congress to reverse the Board’s action now over, the remaining challenge to the election rules is in the courts. The U.S. Chamber of Commerce has challenged the election rules in federal district court in Chamber of Commerce v. NLRB. Motions for summary judgment are pending before the court. Oral argument has not yet been scheduled.

If you have any questions about the Board’s amended rules or require assistance with a representation petition, contact James J. McGovern, III, Esq.Patrick McGovern, Esq., Douglas E. Solomon, Esq. or John Vreeland, Esq. in our Labor Law Practice Group.