In May 2012, a D.C. federal court held that the NLRB’s expedited representation election rule was invalid because the Board lacked a quorum when it issued the rule in December 2011 (a quorum requires three members, but only two members voted on the election rule). The next day, the NLRB suspended the rule’s implementation, and the Acting General Counsel withdrew guidance concerning changes that had taken effect on April 30, 2012 and advised regional directors to revert to their previous practices for election petitions.
Had the rule remained effective, it would have made the following changes to then-current practices:
- Expressly construe Section 9(c) of the National Labor Relations Act (NLRA) to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists.
- Provide hearing officers presiding over pre-election hearings the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation.
- Give hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the subjects to be addressed and the time for filing.
- Eliminate the parties’ right to file a pre-election request for review of a regional director’s decision and direction of election and instead deferring all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings.
- Eliminate the recommendation that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review.
- Make explicit and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.
- Create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and providing that Board review of regional directors’ resolution of such disputes is discretionary.
The full text of the decision is available at:
Information Provided By:
Littler Mendelson P.C.
Author: Tom Dowd
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