NLRB Implements Extraordinary Regulatory Overhaul to Election Procedures


Today, the National Labor Relations Board (NLRB or the Board) announced final rule changes to decades-old election procedures, marking the culmination of a six-month process following the Board’s issuance of a June 22, 2011 Notice of Proposed Rulemaking (NPRM) in the Federal Register. The proposed rule outlined a massive regulatory overhaul to National Labor Relations Act (NLRA or the Act) election procedures designed to significantly shorten the period of time between the filing of an election petition and the holding of the election. The final rule implements a modified version of the proposed rule, outlined by the Board in a resolution adopted by a 2–1 vote in a public meeting on November 30, 2011, with Member Brian Hayes dissenting.

The final rule is scheduled to take effect on April 30, 2012. The Board stated that it delayed the effective date of the final rule so that Member Hayes would have 90 days to write a dissent and have it published before the final rule becomes effective. The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, both represented by Morgan Lewis, have already filed a complaint in the U.S. District Court for the District of Columbia seeking to block implementation of the new rules. Because the Board will likely be reduced to only two members at the end of this year when Member Craig Becker’s recess appointment concludes, thus losing its three-member quorum, the Board may be powerless to take any further action after the Senate adjourns for the year sometime in the next month (ending Member Becker's recess appointment) and for the foreseeable future.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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