Hunton Employment & Labor Perspectives

On December 20, 2011, the National Labor Relations Board (the “Board”) finalized what is being referred to by some critics as the “ambush election rule,” following its contentious November 30, 2011 2-1 vote in favor of its proposed revisions to the procedures by which it conducts workplace elections to determine whether employees do or do not wish to unionize.

The new regulations, which are set to be published in the Federal Register today, alter pre-election litigation procedures that will invariably pave the way for quicker elections in representation cases and likely result in more union victories in elections.  For a detailed summary of these regulations, see our previous post following the Board’s vote on the proposed revisions.  The Board has also provided a short summary of the new regulations.

In response to this week’s developments, two business organizations, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, filed a lawsuit against the Board seeking to stop the implementation of these new regulations.  The suit, filed in the District Court for the District of Columbia, seeks an injunction preventing the Board from enforcing the new regulations and a declaratory judgment holding that the rules are contrary to the National Labor Relations Act and the First and Fifth Amendments to the U.S. Constitution.  The suit also alleges that the manner in which the Board rushed through the rule violated the Administrative Procedures Act and the Regulatory Flexibility Act.

Absent court intervention, the new regulations are due to take effect on April 30, 2012.  Regardless of whether the lawsuit ultimately succeeds in preventing the implementation of the new rules, the Board’s actions continue to signal a significant step towards eliminating the procedural safeguards that permit employers to challenge the appropriateness of proposed bargaining units before an election takes place.  The Board’s actions are also a major step in the direction of shrinking the window of time between a union petition and the actual election.  As we previously have recommended, employers are well served to consult with their labor counsel and advisors, so that they may now begin to make preparations for a labor relations arena in which they may have little to virtually no advance notice of a pending union election and little to no ability to challenge the union’s proposed bargaining unit until after the voting has taken place.