NLRB Issues Final Rule Simplifying and Modernizing Representation-Case Procedures,

The National Labor Relations Board (NLRB) issued a final rule in December 2014 addressing the process by which workers may vote on whether or not to form a union or seek representation by an existing union. 79 Fed. Reg. 74307 (Dec. 15, 2014). The agency, which is charged with enforcing the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., states that the new rule “remove[s] unnecessary barriers to the fair and expeditious resolution of representation questions.” The rule appears to increase unions’ leverage in disputes with businesses over questions of worker representation. Critics call it the “quickie election” rule, and several business organizations are already challenging it in court.

Employees have the right under the NLRA to organize or choose representatives for collective bargaining purposes, or to refrain from this sort of activity. 29 U.S.C. § 157. Employers are prohibited from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of [these] rights.” Id. at § 158(a)(1). If workers and employers cannot reach an agreement regarding the terms of organizing or representation, the NLRB is authorized to resolve the dispute. Id. at § 159. The U.S. Supreme Court held that the NLRB has broad discretion in these types of disputes. 79 Fed. Reg. at 74308, citing NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946), et al.

The NLRA establishes a four-step process for representation disputes: (1) an employee, labor organization, or employer files a petition with the NLRB; (2) the NLRB, or an NLRB regional director, holds a hearing to determine if the petition presents a representation question; (3) an NLRB unit conducts a secret-ballot election; and (4) the NLRB certifies the election results. The statute only provides the basic steps, though, and the NLRB’s experience has shown problems “which cannot be solved without changing current practices and rules.” 79 Fed. Reg. at 74308.

The “concise statement” of the amendments made by the new rule to NLRB regulations includes twenty-five items. 79 Fed. Reg. at 74308-10. The amendments include:
– Allowing electronic filing of representation petitions;
– Requiring employers to distribute a notice of a petition to employees when it is filed;
– Requiring a pre-election hearing to begin soon after a petition is filed, usually eight days, and to continue day-to-day without unnecessary or lengthy continuances;
– Preventing a request for review of an NLRB regional director’s order from from delaying an election, unless the NLRB specifically orders a stay;
– Requiring employers to communicate election notices to employees electronically, if that is how it usually communicates with its employees; and – Requiring post-election hearings on objections or challenges to begin as soon as possible, usually twenty-one days, after the election ends.

A court ruling set aside a similar earlier rule, based on a finding that the NLRB issued the rule without a quorum. Chamber of Commerce of the United States v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012). Less than a month after the NLRB published the new rule, the Chamber of Commerce and other business organizations filed suit to challenge it. Chamber of Commerce of the United States, et al v. NLRB, No. 1:15-cv-00009, complaint (D.D.C., Jan. 5, 2015); Associated Builders and Contractors of Texas, Inc., et al v. NLRB, No. 1:15-cv-00026, complaint (W.D. Tex., an. 13, 2015).

If you need to speak to an employment lawyer in New Jersey or New York, please contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.

More Blog Posts:

NLRB Rules that Tribal Sovereignty Does Not Prevent It from Exercising Jurisdiction Over Indian Casino, The New Jersey Employment Law Firm Blog, November 19, 2014
NLRB Allows McDonald’s Employees to File Complaints Against McDonald’s and Individual Franchisees as “Joint Employers”, The New Jersey Employment Law Firm Blog, November 3, 2014
Adjunct Professors Face Challenges in Trying to Unionize, The New Jersey Employment Law Firm Blog, October 9, 2014

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