The National Labor Relations Board (NLRB) issued a new final rule on December 26, 2011 limiting an employer’s ability to challenge certain election procedures.  The final rule is currently set to go into effect on April 12, 2012; however, like the new notice posting (now effective April 30, 2012), this new rule is subject to legal challenge.  The U.S. Chamber of Commerce and Coalition for a Democratic Workplace have both filed lawsuits in federal district court challenging the new rule seeking injunctive relief.  The lawsuits challenge the Board’s authority to issue the new rule, citing violations of the First and Fifth Amendments.

The new final rule was passed 2-1, just prior to the end of Member Brian E. Hayes’s term.  Member Hayes strongly opposed the new rule and divergence from existing Board procedure.  Among others, the new rule modifies the current pre-election procedures by:

(1) Providing NLRB hearing officer with authority to limit the presentation of evidence at pre-election hearings to “genuine issues of fact material to the existence of representation questions”;

(2) Limiting a party’s right to file post-hearing briefs with only leave of the hearing officer;

(3) Limiting a party’s right to seek review of a regional director’s pre-election unit and eligible voter ruling while allowing parties to seek post-election review of issues not rendered moot by the election;and

(4) Making Board review of post election disputes discretionary.

Legal challenges to the new rule may delay implementation, but employers should act quickly to review their current labor plans with their labor counsel prior these rules going into effect.

By: Justin A. Morocco