[author: Becky S. Knutson]

On May 15, 2012, the Federal District Court in Washington, D.C. enjoined effect of the new NLRB election rules, noting in the opinion that the the National Labor Relations Board did not have a legal quorum voting when the rules were enacted. At the time, the NLRB had three members with two open spots. Only two of the three Board members voted concerning the rules.

While the impact of this decision suspends enforcement of the election rules at this time, it is likely that the NLRB will appeal or take further action concerning the new rules. This action follows an injunction issued by the U.S. Court of Appeals for the D.C. Circuit, enjoining the NLRB from enforcing new posting and penalty rules.

NLRB Election rules

On December 21, 2011, the NLRB adopted the final election rule, which had the effect of limiting issues considered in elections and eliminating pre-election NLRB review of regional directors' decisions concerning certain issues, including:

• establishing an appropriate bargaining unit
• determining individual eligibility for participation in election
• time, date and place of election

Procedurally, the new rules revised the pre-election process, including imposing requirements for:

• requiring that employers provide a list of employee names, addresses, telephone numbers, email addresses and other information within two days of the order directing an election, expanding the formerly required list of employee information to be provided to a union in advance of an election;
• setting a pre-election hearing within seven days of the issuance of a hearing notice; and
• providing an employer's written statement of position prior to any hearing, or subjecting the employer to being prevented from presenting evidence on any such position if not properly disclosed.

The overall effect of the rule standardized procedures among regions, limited issues and issue resolution procedures before elections, and shortened the likely time of any election after a petition for recognition or other action was filed. Generally, employers opposed the rule changes, as they limited the time within which employers could communicate with employees once a recognition petition was filed, limited the time for employees to receive information concerning representation issues; limited the ability of an employer to obtain review of pre-election decisions at the regional level; and required employers to provide expanded employee telephone and email information to union representatives. Unions generally supported the rule changes, as they expedited the election process after filing a recognition petition.

NLRB Posting Rule

The U.S. Court of Appeals for the D.C. Circuit issued an injunction preventing the NLRB posting rule from becoming enforceable on the proposed April 30, 2012 effective date, after an appeal in National Association of Manufacturers v. NLRB. The rule required employers to post a new NLRB notice of employee rights, including the right to unionize, and imposed penalties for the failure to post, including making the failure to post an unfair labor practice and extending the statute of limitations for filing unfair labor practice suits. It is anticipated that appellate arguments on the posting rule will be held in September 2012.