On December 21, 2011 the National Labor Relations Board (“NLRB” or “Board”) adopted rule changes that would expedite the processing of petitions for election filed by union with the NLRB.  These rules, the so called “quickie election” rules would also significantly limit an employer’s ability to legally challenge  a union petition. The rule changes take effect today- April 30.  It had been hoped that a law suit filed by the U.S. Chamber of Commerce, and others, (Chamber of Commerce, et al. v. NLRB, No. 1:11-cv-02262-JEB ) challenging the NLRB’s authority to make the changes would, at least,  postpone, if not derail,  the implementation of the rules.

Unfortunately for the employer community, the District Court Judge on Friday, April 27,  denied a motion to stay the implementation of the rules. The judge has not yet ruled on the merits of the lawsuit, but committed to issuing such a decision no later than May 15.  The new rules, if upheld, will:

  1. Provide an NLRB hearing officer with the ability to limit the evidence that can be introduced at a representation case hearing.
  2. Provide the hearing officer with the authority to deny a party the right to file a post-hearing brief.
  3. Eliminate a party’s right to have the NLRB review a decision by a regional director that directs an election.
  4. Eliminate current language that requires an election to be conducted within 25-30 days, thereby permitting elections to be held before the 25-day period.
  5. Eliminate a party’s right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes.  

Needless to say until there is a final decision on the merits of the NLRB’s actions, there will be considerable confusion and tumult regarding any petitions for elections  filed in the next several weeks.