The National Labor Relations Board has adopted a controversial final rule significantly amending its procedures in union representation cases to limit the issues considered in pre-election hearings, eliminate pre-election board review of regional directors’ decisions and ultimately cut down the time it takes to conduct elections. The final rule was published in the Federal Register on Dec. 22, 2011, and is due to take effect on April 30, 2012. 76 Fed Reg 80138, available at http://www.gpo.gov/fdsys/pkg/FR-2011-12-22/pdf/2011-32642.pdf.

According to the board, the final rule will “reduce unnecessary litigation in representation cases and thereby better enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation.” However, business groups have expressed their disapproval of the final rule, calling it the “ambush election rule,” and the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace immediately sued to block its implementation in the case Chamber of Commerce, et al. v. NLRB, No 1:11-cv-02262 (DC Cir Dec 20, 2011). According to Randy Johnson, the Chamber’s vice president for labor policy, the final rule cuts off the ability of employers to educate workers before a vote and “has no conceivable purpose but to make it easier for unions to win elections.” This month’s column discusses the process leading up to the final rule’s adoption, key changes the final rule makes to existing board election procedures and the pending litigation.

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