With the effective date of the NLRB's new election rules now less than 48 hours away, the NLRB's Acting General Counsel (AGC) continues his implementation efforts. On Thursday, the AGC issued a memorandum (pdf) to the various regional offices of the NLRB containing additional information interpreting the new rule. It also contains implementation instructions for the regional offices.
The memorandum is quite lengthy and detailed. Perhaps the most interesting issue for the labor professional, however, is the guidance the memorandum contains on how regional offices should exercise the discretion the new rule gives them on limiting issues that can be litigated in the initial representation case hearing. It was this litigation, among other items, that the NLRB majority believed to be unnecessary and slowing down the election process. Thus, the NLRB's rule announced that "ordinarily" disputes over eligibility to vote or inclusion in the bargaining unit need not be resolved before the election is held.
The AGC defined "ordinarily" by reference to the number of possible employees impacted by the eligibility or inclusion issue. If 10% or more of the employees in the particular unit are impacted, the question could be addressed in the representation case hearing.
The AGC also specifically commented on the issue of deciding which employees are supervisors. The memorandum makes clear that these questions are subject to the rule. Thus, if there are only a small number of employees who are claimed to be supervisors, the regional office has the discretion to refuse to decide those questions until the election has taken place.
In related developments, Chairman Pearce (D) issued a concurring opinion and Member Hayes (R) issued a dissenting opinion about the new rule yesterday. These opinions continue to debate the questions that have been presented to the court in the Chamber's lawsuit.
In addition, the federal court handling the Chamber of Commerce's lawsuit challenging the rule denied a motion filed by the Chamber to prevent the rule from going into effect. In his ruling earlier today, the judge stated that he would issue his opinion on the merits of the rule before May 15, 2012.
In light of these developments, labor professionals should review the guidance from the AGC, or discuss it with their labor counsel, to determine how it will impact their operations. The AGC's guidance and the NLRB's rule is very technical and detailed. Even the FAQs the AGC issued are lengthy, although not quite as technical as the memorandum itself. It is quite likely, therefore, that the guidance will effect employers in different ways. In addition, labor professionals will want to watch closely for the court's ruling in the Chamber's lawsuit. That ruling will be reported on this blog.