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Total Articles: 85

Employers Involved in Union Campaigns Must Remain Vigilant to Avoid Rerun Elections

Employer conduct during a union organizing drive is intensely scrutinized by the National Labor Relations Board (NLRB). Decisions issued by the current NLRB make clear that even minor violations occurring during the post-petition period may result in the nullification of an employer election victory. A recent case, Intertape Polymer Corp., 360 NLRB 114 (May 23, 2014), demonstrates that seemingly innocuous campaign conduct can have huge implications, even when employees vote overwhelmingly against union representation.

Ogletree Deakins’ Founding Shareholder Homer Deakins Presents Testimony to NLRB on Historic Election Rule Proposal

Over 50 speakers testified, some of them on multiple panels, during the National Labor Relations Board’s two-day public meeting on representation election (“R-Case”) procedures on April 10-11. The oral testimony was part of the notice of proposed rulemaking (NPRM) on the Board’s proposed revisions to its union representation election procedures, which employers refer to as the “ambush” election rules. The comment period for the rule expired on April 7, 2014.

House Committee Advances Bills Seeking to Block NLRB Election Rule

During a Wednesday markup session, the House Committee on Education and the Workforce voted along party lines in favor of sending to the House floor two bills that would effectively prevent the National Labor Relations Board from moving forward with its proposed expedited or “ambush” election rule in its current form. According to Chairman John Kline (R-MN), the two bills “provide an appropriate government response” to the Board’s proposed rule.

NLRB Hearing Tomorrow on Election Rules

As previously discussed here, the NLRB recently announced that it is taking another shot at speeding up union elections.

NLRB Proposes Significant Overhaul of Rules Governing Union Elections

On February 5, 2014, the National Labor Relations Board (NLRB) announced its latest attempt to overhaul union election rules to make organizing faster and easier. The proposed rules are another attempt to push through changes that a federal court invalidated in May 2012 on procedural grounds.

Legislation would Effectively Prevent NLRB's Representation Election Rule From Moving Forward

As a preemptive strike against a final “ambush” representation election rule, Republican lawmakers in both chambers introduced legislation that would blunt its intended effects. In February, the National Labor Relations Board reissued its controversial proposal that would not only expedite union election procedures, but also fundamentally alter the way elections are carried out, and remove many employer due process rights. The reissued proposal was substantively the same as that initially introduced in June 2011, which triggered over 65,000 comments. The Board will hold public hearings on this proposed rule in the coming weeks.

House Committee Holds Hearing on Ambush Election Rule

Employee privacy and employer due process concerns were the focal point of Wednesday’s House Committee hearing on the National Labor Relations Board’s proposed expedited election rule. Last month, the Board re-issued an expansive proposal that would dramatically alter how union elections are conducted.

Pro-Union “Quickie” Election Rule Returns

The “quickie election” or “ambush” election rule that would dramatically shorten the time period before a union representation election is held is back on the table. This rule was first introduced in 2011 by the National Labor Relations Board and struck down by the D.C. Circuit Court in 2012. This month, the newly-constituted Board issued a notice of proposed rulemaking reintroducing the rule as a way to “modernize” the election process, according to Board Chairman Mark Gaston Pearce.

NLRB Schedules Public Meetings to Discuss Proposed Expedited Election Rule

The National Labor Relations Board has scheduled at least two public meetings to address the controversial re-proposal of a rule that would make significant amendments to the union representation election process. After the so-called “ambush” election rule was first proposed in June 2011, the NLRB similarly held a series of contentious public meetings, during which a number of speakers voiced their concerns about the rule’s repercussions. History is expected to repeat itself on April 10 and 11, when the new meetings are scheduled.

Healthcare Legal Alert: The Full Quorum Strikes Back - NLRB's Ambush Election Rules Revived

Executive Summary: With a full quorum of Board members and a 3-to-2 political majority in the Democrats' favor, the National Labor Relations Board (NLRB) has resurrected proposed rule changes that would drastically affect future representation elections and hamstring an employer's ability to defend against a petitioning union.

NLRB Again Proposes "Quickie Election" Rules

The National Labor Relations Board has proposed to reissue its 2011 "quickie election" rules, which were invalidated in a court ruling based on a procedural error in their adoption. The revised NLRB election rules would avoid most pre-election disputes - even concerning which employees are eligible to vote - in order to get to an election much quicker. If the proposed rules are implemented, as most NLRB watchers suspect will occur, unions will likely have a huge leg up in their efforts to organize a workplace.

Non-Union Employers Beware: The NLRB Re-Issues Its Proposed Rulemaking to Foster Unionization

Three years ago, during the summer of 2011, the National Labor Relations Board ("NLRB" or "Board") undertook two initiatives to promote unionization among private sector workers. First, in June 2011, the NLRB issued a notice of proposed rulemaking to expedite representation elections. (After only two days of hearing in late-July, the NLRB issued its final rule for expedited elections in December 2011.) Second, in August 2011, the NLRB issued a final rule requiring private sector employers to post notices advising employees of their rights under the National Labor Relations Act ("Act"). Both of these initiatives were stymied by federal courts of appeal upon litigation commenced by various employer groups.

The NLRB's New, Improved "Quickie Elections" Rule: What Employers Can Expect

On Tuesday, February 4, the National Labor Relations Board announced proposed rulemaking on Board elections, a second attempt at the so-called "quickie elections" rule. The proposed regulations, if they become effective, will have a substantial effect on the election process. Most significantly, the period between a petition and the election will be shortened, making it difficult for employers to communicate with employees about potentially relevant issues before the vote.

NLRB (Again) Proposes Fast-Track Election Rules

In news that is certain to reignite fierce debates between employer and union groups, the NLRB announced today that it will take another shot at speeding up union elections.

NLRB Reissues “Quickie Election” Rule; Makes No Substantive Changes from Original 2011 Proposal

Today, the National Labor Relations Board announced that it was reissuing its “quickie election” rule in a new Notice of Proposed Rule Making. The Board previously issued this proposed rule back in June 2011, and a final, slimmed-down version was later struck down by federal courts for procedural reasons. Most importantly for employers, though, today’s release explains that the new rule is not the scaled back version, but is in substance “identical to the representation procedure changes first proposed in June of 2011.” Both Republican members dissented from the reissuance of the proposed rule.

NLRB Re-Issues Expansive Proposed Representation Election Procedures Rule

As expected, the National Labor Relations Board has re-issued its proposed rule that would dramatically change and expedite the union representation election process. According to the Board, the proposed changes to the process “are identical to the representation procedure changes first proposed in June of 2011.” Notably, the Board has chosen to re-propose the original “ambush” election rule, and not the scaled-back version it issued in December of that year, which a federal district court eventually invalidated because the Board lacked a valid quorum at the time of approval.

It's Back – NLRB Revives Quickie Election Rule That May Soon Be Here to Stay

The National Labor Relations Board has just announced that the agency would be reissuing its proposed “quickie election” amendments to rules governing representation case procedures. The news came in the form of a press release, describing plans to publish a formal Notice of Proposed Rulemaking, incorporating changes that “are identical to the representation procedure changes first proposed in June of 2011.”

NLRB Reissues “Ambush Election” Rules On Steroids

Today, the National Labor Relations Board (NLRB) announced its intention to reissue a Notice of Proposed Rulemaking (NPRM) for what has become known as the “ambush election” rules governing the procedures for union representation elections. Thus, once again the NLRB will pursue rulemaking to bring about “quickie” union elections, reducing the time available for employers to help employees obtain the information they need to make an informed decision about unionization, and making union representation campaigns far easier for unions to win. The NLRB said the full NPRM would appear in the February 6, 2014 Federal Register.

Is an “Ambush” The Best Way for Unions to Win Representation Elections?

The U.S. Department of Labor’s Bureau of Labor Statistics recently published the latest official statistics on union membership for 2013. The figures demonstrate just how far unions must grow in order to reverse the decades-long decline in union density as a percentage of eligible private sector workers.

NLRB Formally Rescinds Quickie Election Rule, Still Assessing Next Move

On the heels of its decision earlier this month to abandon its previously enjoined notice posting rule, last week the National Labor Relations Board (NLRB) formally rescinded its “quickie election” rule that we have covered in the past. A federal district court in Washington, D.C. had previously struck down the rule and the D.C. Circuit had held the NLRB’s appeal in abeyance while the Supreme Court considered the Noel Canning case involving challenges to the Obama administration’s recess appointments to the Board. After the D.C. Circuit postponed its decision, the NLRB dropped its appeal of the case.

National Labor Relations Board Pauses from Election Rules Amendments

The National Labor Relations Board has rescinded its “quickie election” amendments to the NLRB’s representation case procedures adopted in December of 2011. The Board’s action, announced on January 22, 2014, follows the 2012 decisions of the U.S. District Court for the District of Columbia in Chamber of Commerce, et al. v. NLRB. The court decided the amended rule was invalid because the NLRB lacked a quorum (at least three members) when the change was made.

NLRB Bails on Notice Posting Rule; May Reconsider “Quickie Election” Rule?

Earlier this week, the National Labor Relations Board issued a statement that it would no longer pursue its appeal of two federal court decisions striking down its “notice posting” rule.

NLRB Still Contemplating “Quickie” Union Election Rules

On November 26, 2013, the National Labor Relations Board (NLRB) issued its semiannual regulatory agenda, which, tellingly, focused on one issue—the Board’s proposed changes to the rules that will speed up union representation elections. The Board’s “quickie” election rules are widely viewed as favorable to unions because under these rules, employers would have less time between the filing of the union’s petition and the employees’ vote.

NLRB Dismisses Appeal, Opening Door to Re-Issued Election Rule

On Monday, the NLRB voluntarily dismissed its appeal in Chamber Of Commerce v. NLRB, the case in which the U.S. District Court for the District of Columbia found the Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. In this case, the district court determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel.

NYU and UAW Agree to Union Election for Graduate Students

NYU and the UAW have reached an agreement to pave the way for an election among covered graduate students at NYU and NYU-Poly to determine whether the graduate students will be represented as a bargaining unit by the UAW.

Lack of a Definition for Full-Time Employees in CBA Spells Trouble for Hospital

A Michigan district court recently granted a union’s summary judgment motion to enforce an arbitrator’s decision that struck down the hospital’s new method of scheduling nurses’ shifts. In enforcing the arbitrator’s decision, the court relied on the fact that the collective bargaining agreement (CBA) at issue did not set forth a clear definition of what constitutes full-time employment, underscoring the importance of CBA language.

Oral Argument on Board’s “Quickie Election” Rule Delayed

The D.C. Circuit Court has decided, on its own motion, to delay oral argument on the National Labor Relations Board’s (“Board”) “quickie election rule,” a rule approved at the end of 2011, that speeds up the time between the filing of a petition for an election and the election itself.

Setback to NLRB Quickie Election Rule Seen as Appeals Court Halts Argument Set in Employer Challenge

The National Labor Relations Board may be facing further disappointment over its 2011 rule to speed up representation elections when the federal Court of Appeals in Washington, DC, next renders an order in a legal challenge to the controversial measure. Chamber of Commerce v. NLRB, No. 12-5250 (D.C. Cir. Feb. 19, 2013). The U.S. Court of Appeals for the District of Columbia Circuit, on its own motion, on February 19 removed the case from the oral argument calendar for early April and directed it be held in abeyance pending further order of the Court, following the Court’s consideration of its opinion and judgment in Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013).

NLRB Overturns Longstanding Precedent and Rules That a Dues Check Off Provision Survives Contract Expiration

Overruling approximately 50 years of its own precedent, the National Labor Relations Board has decided that a union dues check off provision in a collective bargaining agreement will survive expiration of the agreement. The Board held 3-1 in WKCY-TV, Inc., that the check off provision is part of the status quo terms and conditions of employment that must be maintained by an employer until agreement or impasse in bargaining with a union, unless the parties to the agreement "clearly and unmistakably" agree otherwise. The WKCY decision overrules the 1962 case of Bethelehem Steel, which the Board had followed since 1962 and through the administrations of 10 presidents of both parties. The Board in WKCY held that its new rule would not be applied retroactively to pending cases, but would be applied prospectively.

NLRB “Quickie Election” Rule Still Invalid for Lack of Board Quorum, Federal Court Says

A federal district court in Washington, D.C., again has ruled, in response to the NLRB’s motion to alter or amend the judgment, allegedly based on new evidence, that the National Labor Relations Board “quickie election” rule that went into effect on April 30, 2012, is invalid because only two members of the Board, instead of the three needed to make up a quorum, participated in the final vote to pass it.

Federal Court Rejects NLRB's Attempt to Reverse Ruling on Election Rule

On Friday the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s motion to reconsider the court’s May 14 finding that that the Board’s expedited representation election rule was invalid due to lack of a statutorily-mandated quorum when the Board approved the rule in December 2011. A year earlier, the U.S. Supreme Court held in New Process Steel that the Board must act with at least three sitting members to exercise its full authority. In the case at hand, the D.C. federal court agreed with arguments made by the U.S. Chamber of Commerce and Coalition for a Democratic Workplace that the agency did not have the authority to adopt the election rule, as only two members – Chairman Mark Gaston Pearce and former member Craig Becker – actually cast votes in the rule’s favor. Member Brian Hayes had voted against an earlier version of the rule and declined to participate in the December vote.

COURT STRIKES DOWN NLRB’S NEW UNION ELECTION RULES

In previous Compliance Matters, we discussed the NLRB's new election rules, which took effect April 30, 2012, and the Memorandum issued by the NLRB's General Counsel to advise the Board's Regional Offices on implementing them. Those rules are now on hold because a federal judge in Washington, D.C. ruled on May 14 that the Board did not have the three-member quorum required to adopt the rules because one member did not participate in the vote.

NLRB’s “Quickie Elections” Rule Struck Down – But For How Long?

The National Labor Relations Board is not having much luck in court lately. Less than a month after a federal court blocked implementation of the NLRB’s mandatory workplace posting rule, Judge James E. Boasberg (an Obama appointee) of the United States District Court for the District of Columbia ruled that the “quickie elections” rule is invalid because it was promulgated without a quorum of NLRB members.

Hold On, Mr. President! Not So Fast With Those Quickie Elections

The "quickie elections" rule of the National Labor Relations Board, which took effect on April 30, is on hold after a federal court ruled Monday that the Board lacked a quorum and had not effectively promulgated the rule.

Federal Judge Invalidates NLRB Union Election Rule

At our Annual Employment Law Seminar, we discussed the NLRB's adoption of its so-called "quickie-election" rules, which were adopted in December 2011, following the Obama Administration's failure to obtain passage of the "Employee Free Choice Act," a statute designed to promote union organizing by providing for fast elections when a union files a petition for certification.

NLRB Suspends New Union Election Rules

The NLRB's new union election rules are temporarily suspended

NLRB Suspends New Election Case Procedures Rule in Response to Court Ruling

In a prior Alert dated December 28, 2011, we reported that the National Labor Relations Board (the "NLRB" or the "Board") had adopted a controversial new rule amending its election case procedures. The new rule took effect on April 30, 2012. The changes encompassed by the rule have been of significant concern to employers, since they threaten to significantly shorten the average election period, from the current median of 38 days to only about 21 days. Critics say that the new rule is designed to foster "ambush elections" that will put employers at a disadvantage in the campaign process and will deprive employees of gaining a full understanding of the facts before an election.

U.S. District Court Invalidates NLRB's Controversial Final Rule Adopted Without Required Quorum

On May 14, 2012, the U.S. District Court for the District of Columbia set aside a controversial final rule of the National Labor Relations Board ("NLRB") that was designed to make it easier for unions to hold organizing elections. Chamber of Commerce of the United States of America, et al. v. NLRB, Case No. 11-02262 (D.D.C. May 14, 2012). The District Court invalidated the rule "because no quorum ever existed for the pivotal vote in question." The final rule would "amend[] the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining." The plaintiffs sought to enjoin the NLRB from enforcing the final rule that was purportedly adopted electronically on December 16, 2011 by a quorum, asserting in relevant part that the signatures of two members did not constitute a quorum necessary to promulgate a final rule.

Court Strikes Down NLRB "Quickie Election" Rule

On May 14, 2012, the U.S. Chamber of Commerce and the Coalition for a Democratic Workforce dealt yet another blow to the National Labor Relations Board, securing summary judgment in their challenge of the NLRB's expedited-election rule. In striking down the rule, the U.S. District Court for the District of Columbia declined to rule on the merits of the case, choosing instead to focus upon the absence of a lawful quorum at the time of the rule's passage.

D.C. Federal District Court Overturns NLRB Quickie Election Rule; Leaves Questions for Employers May 15, 2012

Yesterday, the U.S. District Court for the District of Columbia issued a ruling on the U.S. Chamber of Commerce’s challenge to the National Labor Relations Board’s (NLRB) quickie election rule that technically took effect on April 30. District Judge James E. Boasberg handed the NLRB its second major defeat in the past two weeks. Holding that “the quorum requirement…is no trifle,” he ruled that the NLRB failed to approve the quickie election rule with a quorum, and that the new rule was therefore invalid.

NLRB “Quickie Election” Rule Invalid for Lack of Board Quorum, Federal Court Rules

The National Labor Relations Board “quickie election” rule that went into effect on April 30, 2012, is invalid because only two members of the Board, instead of the three needed to make up a Board quorum, participated in the final vote to pass it, a federal district court has ruled. Chamber of Commerce v. NLRB, No. 11-2262 (D. D.C. May 14, 2012). The rule, which the Board rushed to finalize at the end of 2011 (before losing one of its then-three remaining members), eliminates certain pre-election rights of employees and employers, shortening the time before a representation election takes place.

NLRB Suspends Implementation of New Representation Election Rule

In light of yesterday’s federal court decision finding that the NLRB lacked a quorum necessary to issue the controversial new representation election rule, the Board has decided to suspend the rule’s implementation. The Board’s Acting General Counsel has similarly withdrawn guidance released last month governing the representation case procedure changes, which had taken effect on April 30, 2012.

NLRB Enjoined, Again

Earlier it was the NLRB's posting regulations, see post here, which were enjoined. Today it's the regulations regarding the conduct of elections (sometimes referred to as the ambush election rule) which was the subject matter of yet another injunction.

D.C. Federal Court Finds NLRB Election Rule Invalid for Lack of a Quorum

In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. The federal court opinion explained:

D.C. Court Invalidates "Ambush Election" Rule

On May 14, 2012, in Chamber of Commerce et al v. NLRB, District Judge James E. Boasberg of the U.S. District Court for the District of Columbia enjoined the National Labor Relations Board's (NLRB) representation case rules (commonly referred to as the "quickie election" or "ambush election" rules) because of a lack of a quorum of three Members acting on the final rule. Citing the U.S. Supreme Court’s decision in New Process Steel, the court noted that: "At the end of the day, while the Court's decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle."

Pick Up the Pace: New NLRB Regulations Force Employers to Respond More Quickly to Election Petitions

When the National Labor Relations Board adopted a new rule in December 2011 modifying certain NLRB election procedures, there was substantial speculation about how these changes would be implemented and their practical effect. With the changes applicable to cases filed after April 30, 2012, the NLRB's Acting General Counsel, Lafe Solomon, has issued a lengthy General Counsel's Memorandum (GC 12-04) designed to provide detailed guidance to the NLRB's Regional Directors, who are responsible for implementing the new rule.

NLRB Quickie Election Rule Now In Effect

On April 28, 2012, a federal judge with the U.S. District Court for the District of Columbia cleared the way for the National Labor Relations Board's expedited-election rule. It is effective today, Monday, April 30th.

D.C. District Court Refuses to Temporarily Enjoin NLRB’s Quickie Elections Rule; Will Rule by May 15, Prior to Any Elections

The National Labor Relations Board’s controversial new regulation designed to streamline and shorten the union representation election process goes into effect today. The U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, and affiliated business groups failed over the weekend to secure a temporary injunction preventing the Board from implementing the rule beginning today.

Acting General Counsel Releases Guidelines on "Quickie Election" Rules Effective Monday, April 30

In a memorandum released today to all National Labor Relations Board (NLRB) Regional Directors, the Board's Acting General Counsel Lafe Solomon outlined the new procedures governing "quickie election" procedures that, barring a last minute court ruling, will go into effect on Monday, April 30. The new election rules will shorten the time between the filing of an NLRB representation petition and the conduct of a union representation election. We covered these rules in detail when the Board announced them controversially back in December 2011.

NLRB General Counsel Issues Guidance on Representation Election Rule

The National Labor Relations Board’s Acting General Counsel Lafe Solomon has released guidance on the “quickie election” final rule scheduled to take effect on April 30, 2012. The final rule (76 Fed. Reg. 80138) eliminates certain pre-election rights of employees and employers, which shortens the time before a representation election takes place. The guidance (Memorandum GC 12-04) details how the NLRB regional offices will implement the new representation case procedures. The GC also released Frequently Asked Questions on the new procedures.

NLRB Issues Guidance on New Election Rule

In anticipation of the April 30, 2012 implementation date for the new National Labor Relations Board representation election rule, the Board’s Office of the General Counsel has issued guidance (pdf) on the representation case procedure changes. The Board has also released a set of frequently asked questions (FAQs) on the impact of the new election procedures. As discussed in the Board guidance, the new election rule makes the following changes to existing practices:

New NLRB Election Rule under Fire in Congress and Courts

With the National Labor Relations Board’s “quickie election” final rule scheduled to take effect on April 30, 2012, Senator Mike Enzi (R-WY), Ranking Member of the Senate Committee on Health, Education, Labor and Pensions (HELP) introduced S. J. Res. 36 under the Congressional Review Act, seeking to prevent the rule’s implementation. The CRA allows Congress, with the concurrence of the President, to disapprove and void regulations issued by federal executive departments and independent agencies. However, the Joint Resolution failed in the Senate on April 24.

Senate Defeats Resolution to Block NLRB Election Rule

A measure designed to prevent the National Labor Relations Board’s new election rule from taking effect next Monday was defeated in the Senate. On Tuesday the Senate voted 45-54 in favor of a motion to proceed to a vote on S. J. Res. 36, a resolution disapproving of the Board’s rule that expedites and makes other dramatic changes to the representation election process. At least 60 votes were needed to allow the resolution to proceed to a vote. The vote was largely along party lines, with no Democrats supporting the resolution and Senator Lisa Murkowski (R-AK) the only Republican to vote against the measure.

UNDERSTANDING THE NEW NLRB ELECTION PROCEDURES

The National Labor Relations Board is once again flexing its muscles to the detriment of the nation's employers. On December 21, 2011, the Board issued its final rule amending its union election procedures; it becomes effective April 30, 2012. The Board intends the new rule to "reduce unnecessary litigation and delays."

NLRB Begins Plans for Enforcing New Election Regulations

Controversial National Labor Relations Board regulations that will dramatically change union representation election procedures are slated to take effect on April 30, 2012. In anticipation of this event, Board regional offices have been stepping up their internal training efforts and preparing outreach programs to explain the new regulations to the public.

House and Senate Introduce Resolutions Condemning NLRB Election Rule

On February 16, 2012, Republican members of both the House and Senate introduced resolutions (H.J. Res. 103; S.J. Res. 36) formally disapproving of the National Labor Relations Board’s recent final rule that dramatically changes representation election procedures.

NLRB Chairman Says He Will Push For Additional Election Rule Changes

In keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.

FAA Deal Reached on NMB's Rulemaking, Changes Certain Election Procedures

Last Friday leaders of the House and Senate reportedly came to an agreement on the terms of the Federal Aviation Administration (FAA) reauthorization bill concerning how the National Mediation Board (NMB) will conduct representation elections and issue new rules. The NMB is the independent agency that oversees union representation, collective bargaining, and dispute resolution matters in the rail and airline industries.

Senator Threatens to Defeat NLRB's Election Rule

The same day the National Labor Relations Board (NLRB) released its final rule that radically alters union representation election procedures, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, announced his intention to challenge the rule under the Congressional Review Act (CRA). Pursuant to this law, the House or Senate can introduce a joint resolution of disapproval to prevent an agency from enforcing a rule.

NLRB To Issue Scaled-Back Changes to Rules Governing Union Elections; Changes Expected to Lead to Quicker Elections

In June 2011, the National Labor Relations Board (NLRB) proposed new rules governing union elections under the National Labor Relations Act. The NLRB's proposed changes to its election procedures drew a tsunami of comments from the labor and business communities and led to a nasty public disagreement among NLRB members. Today, the NLRB announced that it will issue a scaled-down version of the hotly debated changes to its union election rules. The NLRB will officially publish the final version of the rules tomorrow and they will become effective on April 30, 2012.

Quickie Election Rule Finalized Before Year End

As predicted, the National Labor Relations Board (the “NLRB” or “Board”) has published a final rule amending its union election process. The “quickie election” rule, which the Board rushed to finalize before losing one of its three remaining members at the end of the year, will significantly change the process for contesting petitions for union elections and limit an employer's opportunities to challenge the process before an election is held. It is scheduled to take effect on April 30, 2012.

NLRB Votes To Change Representation Election Proceedings

On November 30, 2011, the National Labor Relations Board (NLRB) voted 2-1 in favor of revising representation election proceedings by adopting a number of the changes included in its proposed rule, which was published in the June 22nd issue of the Federal Register. The adopted rule revises the process for union representation elections, shortening the time from the filing of the election petition until the actual vote is held and thereby making it easier for unions to win elections and more difficult for employers to communicate with employees prior to the vote.

NLRB Moving Forward With New Election Rules

A union organizer's dream would consist of a "quickie" election in a gerrymandered unit comprised mostly of card signers. Having established such a beachhead, the union could then engage in an ongoing game of dominos, with one company department after another falling in line. In a recent decision (Specialty Healthcare) and a proposed rule change, the Democratic majority of the National Labor Relations Board (NLRB) has signaled its intention to fulfill the organizers' dream.

Two-Member NLRB Majority Adopts Unprecedented Resolution to Move Forward With Subset of Election Rule Amendments

In an unprecedented development, and by a 2-1 vote, the National Labor Relations Board on November 30, 2011, approved a resolution to prepare a final rule adopting a subset of the controversial election rule amendments the Board published for comment in June 2011. The two-member majority was made up of Chairman Mark Pearce and Member Craig Becker, both of whom come from union backgrounds. The Board's lone Republican, Member Brian Hayes, voted against the resolution, criticizing the proposed amendments and the process by which they had been vetted as fundamentally flawed.

NLRB Approves Resolution to Move Forward on "Quickie" Elections

This week, the National Labor Relations Board approved a Resolution to move forward with some earlier-proposed changes of rules for union representation election procedures. According to Board Chairman Mark Gaston Pearce (D), the proposed changes are designed to streamline the election hearing and appeal procedures and speed up the election process, a result that would effectively shorten the time period for employers to communicate with employees in representation election campaigns and permit elections to go forward in bargaining units that could be dramatically affected by post-election appeals. Chairman Pearce and Member Craig Becker (D), whose recess appointment will end when the current session of Congress ends later this year, voted in favor of the Resolution, and Member Brian Hayes (R) voted against it. The NLRB promises to post a video recording of the meeting, but it was not posted as we went to press.

Quickie Election Resolution Adopted, Be Prepared

The National Labor Relations Board (“Board”) held a hearing about Chairman Mark Gaston Pearce’s proposed Resolution adopting an amended version of the pending “Quickie Election” Rule on November 30th. By a 2-1 margin (with Republican Member Brian Hayes voting against the Resolution), the Board approved the Chairman’s proposed Resolution in its entirety.

NLRB Chairman Issues Proposed Resolution on Election Rules In Advance of Today’s NLRB Meeting

As we have previously noted, the National Labor Relations Board (NLRB) has proposed to amend its rules and regulations governing the union election process. On November 18, the NLRB announced that it would consider whether to adopt portions of the proposed amendments at a meeting scheduled for today. The NLRB explained that it was moving forward on portions of the proposed rule in light of the possibility that it will lose a quorum when Member Becker’s recess appointment expires at the end of the current congressional session. These proceedings have given rise to a heated dispute among the NLRB, with both Member Hayes and Chairman Pearce publicly commenting about the draft rule and the rulemaking process.

NLRB Votes To Change Representation Election Proceedings

On November 30, 2011, the National Labor Relations Board (NLRB) voted 2-1 in favor of changing representation election proceedings by adopting a number of the changes included in its proposed rule, which was published in the June 22nd issue of the Federal Register. The adopted rule revises the process for union representation elections, shortening the time from the filing of the election petition until the actual vote is held and thereby making it easier for unions to win elections and more difficult for employers to communicate with employees prior to the vote.

NLRB Quickie Elections Coming Quickly?

The National Labor Relations Board has announced it will vote on proposed amendments to the agency's union representation election procedures—known as the "Quickie Election" rule—on November 30, 2011. The Board’s Notice of Proposed Rulemaking regarding the “quickie election” rule, published this past June, includes significant potential changes to the current union election process.

NLRB Vote on Portions of Proposed Election Rule Imminent

The National Labor Relations Board has announced that on November 30, 2011, it will vote on a portion of its controversial proposed rule that would dramatically change representation election proceedings. Among other significant revisions to the long-standing election process, the rule would require that pre-election hearings be held within seven calendar days after a petition is filed; postpone voter eligibility determinations until after the election; require employers to complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union with a preliminary voter list before the pre-election hearing. The Board stated that at the November 30 meeting the three remaining members will decide whether to adopt “a small number” of these proposed changes, although which ones were not specified.

Election Results Set Aside Based on Union-Funded Lawsuit

The Board has announced a new approach to the question of whether the filing of a lawsuit to redress unlawful employment practices, when financed by a union prior to a representation election, interferes with a fair election. Specifically, in Stericycle, Inc., 357 NLRB No. 53, the Board held that a union engages in objectionable conduct warranting a second election when it finances a lawsuit filed during the narrow time period – known as the “critical period” – between the date of the filing of the representation petition and the date of the election, if the lawsuit asserts claims under federal or state wage and hour laws, or other similar employment laws on behalf of employees in the unit. The Stericycle decision overrules prior Board standards for determining whether union-sponsored lawsuits filed during the critical period will taint election results.

Elections in the Fast Lane: The NLRB's New Rule for Union Organizing

The National Labor Relations Board (NLRB) on June 21, 2011, proposed a new rule to speed-up union elections. The notice of proposed rulemaking was published in the Federal Register on June 22, 2011 and the public has 60 days to comment. As NLRB Member Brian Hayes' dissent provides, the proposed changes would amount to a union-friendly "quickie election" option in which elections would be held in 10 to 21 days after the petition's filing. "Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining," Hayes said in his dissent. The importance of shortening the amount of time between a petition and election stems from the perception that employers can use that period to get their perspective across to their employees. A quicker election would result in less time for a company to communicate its message to employees as to why unions are not in the employees' best interests, to tell employees its story, and to help employees understand the importance of the election. We believe that the NLRB, under President Barack Obama, will make union-friendly changes, either through the rule-making process or by reversing precedent. Among the changes proposed by the NLRB are allowing for the electronic filing of petitions and other documents, having NLRB regional directors set pre-election hearings seven days after a hearing notice is served and post-election hearings 14 days after ballots are tallied, and deferring litigation of most voter eligibility issues until after the election. The proposed amendments would also consolidate all election-related appeals to the board into a single post-election appeals process and make board review of post-election decisions discretionary, not mandatory, according to the NLRB. Get ready for union organizing because this rule is probable and likely will energize the unions to reverse the current trend of losing union members. Further, with the recent changes to public sector unions, organized labor might see the private sector as a means of survival. For guidance on these and other employment or labor law issues, contact Krukowski & Costello, S.C.'s educational services department at (414) 988-8400.

Comments to NLRB’s Proposal to Amend Union Elections Procedures

The National Labor Relations Board on July 18 and July 19 heard public comments on its proposed amendments to its union representation election procedures. Harold R. Weinrich, a partner in the Washington, D.C. Region office of Jackson Lewis LLP, spoke on behalf of the Atlantic Legal Foundation at the meeting. A copy of Mr. Weinrich’s presentation is available here.

NLRB Proposes "Quickie" Union Elections

On Tuesday, the National Labor Relations Board proposed new rules that would significantly shorten the time between the filing of a petition for a union election and the election date. Under current rules, 95 percent of all initial elections are conducted within 56 days of the filing of the petition. In fact, in 2010, initial elections were conducted in a median time of 38 days from the filing of the petition.

NLRB’s Proposed Rules Will Accelerate The Union Election Process

The NLRB intends to significantly accelerate the union election process, according to the proposed rules published today in the Federal Register. Most importantly, the proposed rules will shorten by more than half the time between the filing of an election petition and the election itself. Currently, the NLRB conducts union elections an average of 31 days after a petition is filed. Under the proposed rules, employers should expect the NLRB to conduct elections within 10 to 21 days after a petition is filed.

Labor Agencies Double-Team Business Community with Onerous Rules

The National Labor Relations Board (NLRB) and U.S. Department of Labor (DOL) have proposed new rules that shorten union election deadlines and expand reporting requirements. The proposed rules are designed to limit employer free speech with employees prior to a union representation election. Below are the key points regarding both rules.

Two Newly Proposed Agency Rules Threaten to Hamper Employer Communications before Union Elections

The National Labor Relations Board has formally issued proposed rule changes that, if adopted, will drastically expedite the union election process. The employer community has anticipated the NLRB’s move to seek to expedite the representation election process. At recent Congressional hearings, Chairman Wilma Liebman hinted that such action was under active consideration.

Union Representation Elections On The Rise

Recently released statistics indicate that the number of representation elections conducted by the National Labor Relations Board (NLRB) in 2010 increased substantially from the previous year. The number of elections held increased from 1,321 in 2009 to 1,666 last year. Unions won 1,126 of those elections in 2010, an increase from 908 wins the prior year.

NLRB Authorizes Lawsuits against Four States Requiring Secret Ballots in Union Elections

The Acting General Counsel of the National Labor Relations Board, Lafe E. Solomon, has notified the attorneys general in four states — Arizona, South Carolina, South Dakota, and Utah — that the Board had authorized him to file lawsuits in federal court seeking to enjoin the attorneys general from enforcing each state’s recently passed state constitutional amendment governing the method by which employees choose union representation. The Acting General Counsel is taking the unprecedented move of demanding that the four attorneys general agree to ignore the decision by their state’s voters to require the right to vote by secret ballot in all union elections. Solomon’s January 13, 2011, letters are just the latest Board initiative in its continuing effort to change the national labor policy.

UAW Issues “Principles for Fair Union Elections”.

On January 3, 2011, the United Autoworkers (UAW) issued a set of “Principles for Fair Union Elections” as it prepares to launch an organizing campaign targeting employees who work at foreign-owned auto manufacturing plants in the United States. Realizing that the Employee Free Choice Act (EFCA) is not likely to become law anytime soon, the UAW developed the principles in an attempt to coerce these employers into agreeing to concessions that will make union organizing easier in much the same way that EFCA would have.

Is the NLRB Preparing to Conduct Elections in Five to Ten Days?

In a recent speech at Suffolk University Law School, National Labor Relations Board Member Mark Gaston Pearce commented that his agency needs to make the time getting to an election "as brief as possible." Of particular interest to Mr. Pearce was the election system used in Canada which gets employee voters to the polls in just five to ten days and puts off issues of voter eligibility until after the vote.

Employer Cannot Withdraw Recognition of Union During Protected Certification Year.

The 9th U.S. Circuit Court of appeals has held a Washington state medical center in violation of federal labor law for withdrawing recognition of a union during a protected certification period.

Union Win Rate in NLRB Elections Increases Substantially.

Unions won 67 percent of NLRB elections held in the first half of 2008. That’s up from 59 percent during the corresponding period in 2007.

Hospitality Industry: Box Score (Union Elections)

August and September saw a big spike in union petitions at hospitality employers. Here are 17 we are aware of, all filed in the same two-month period.

NLRB Dramatically Changes Rules Regarding Union Recognition.

In a decision that overturns more than 40 years of precedent, the National Labor Relations Board announced yesterday that the "recognition bar," which precludes a decertification election for 12 months after an employer recognizes a union, does not apply when that recognition is voluntary, based on a card check. Dana Corp.; Metaldyne Corp. 351 NLRB No. 28 (2007).

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