Wyatt Employment Law Report

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Judge Rejects NLRB’s Motion to Set Aside Decision Enjoining Implementation of New Election Rules

By Edwin S. Hopson

In Chamber of Commerce of the United States, et al. v. National Labor Relations Board, Civil No. 11-2262, the U.S. District Court for the District of Columbia had enjoined on May 14, 2012, the NLRB’s implementation of its new regulations relating to representation elections based upon a lack of quorum.  Thereafter, the NLRB filed a motion in the district court requesting that the judge alter or amend the judgment to permit it to implement its new election regulations.

On July 27, 2012, the district judge denied the motion and again invited the NLRB to vote again on the new rules.  The Board has yet to take the court up on that move and will likely appeal his ruling to the U.S. Court of Appeals for the District of Columbia Circuit.  The July 27 ruling can be found at:


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NLRB’s New Rules Governing Union Representation Election Procedures Go Into Effect

By Edwin S. Hopson

New rules governing procedures applicable to the processing of representation cases before the National Labor Relations Board went into effect on April 30, 2012.  According to an April 26, 2012, memorandum issued by NLRB Acting General Counsel Lafe Solomon to NLRB field personnel, the new rules “are designed to reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation.” 

The changes are:

1.         §102.64 is amended to expressly construe Section 9(c) of the National Labor Relations Act to state that the statutory purpose of a pre-election hearing is to determine if a “question concerning representation” exists.

2.         §102.66 is amended to clarify that NLRB hearing officers presiding over pre-election hearings have the authority to limit the introduction of evidence to that which supports a party’s contentions and is relevant to the existence of a “question concerning representation.”

3.         §102.66(d) is amended to afford the hearing officer presiding over a pre-election hearing the discretion as to whether or not the filing of post-hearing briefs will be allowed, and, if so, what issues are to be addressed, and the time for filing, all subject to the ultimate authority of the regional director.

4.         §§102.67 and 102.69 are amended to defer most requests for Board review—with the exception of special permission to appeal—until after the election is conducted; any such post-election request can also be consolidated with a request for review of any post-election rulings.

5.         §101.21(d) is amended to eliminate the recommendation (along with all of Part 101, Subpart C) that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review, since such requests can now only be made after the election is conducted.

6.         §102.65 is amended to clarify and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.

7.         §§102.62(b) and 102.69 are amended to create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and to provide that Board review of a regional director’s resolution of such disputes is discretionary.

Dissenting Member Hayes issued a written statement in which he argued, among other things, that the new rules are contrary to the Act and the constitution as well as contrary to past practice at the Board.  Hayes points out that only two members of a five member board approved the new rules. Chairman Pearce offered a rebuttal in the form of a concurring statement supporting the implementation of the new rules. Chairman Pearce’s and Member Hayes’ statements can be found at:


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Senate to Debate Resolution That Would Block NLRB’s New Election Rules Meant to Speed Up the Union Election Process

By Edwin S. Hopson

On April 20, 2012, Republican U.S. Senator  Mike Enzi of Wyoming, the ranking member on the Senate Health, Education, Labor and Pensions Committee, announced that it was expected that the full Senate on April 23 and 24 will debate S.J. Res 36, which seeks to invalidate the NLRB’s regulation that would speed up the union representation election process.  The NLRB’s proposed rule is scheduled to go into effect April 30, 2012. 

Under the Congressional Review Act, if the Senate and House pass a resolution of disapproval of a federal agency regulation, that action nullifies the regulation.  As to the Senate, the law provides that such resolutions are not subject to filibuster and need only a simple majority to pass.  According to a press release issued by Senator Enzi, 44 Republican members of the Senate are already supporting the resolution.  It would appear, that if the resolution passes the Senate, that the Republican-dominated House of Representatives would also pass the resolution.

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NLRB to Hold Meeting on November 30 to Consider Implementing Only a Portion of its Proposed Rule Speeding Up the Election Process

By Edwin S. Hopson

On November 18, 2011, the National Labor Relations Board announced in a press release that it has scheduled a November 30, 2011, vote on whether to adopt a small number of the amendments to its election procedures that the Board proposed earlier this year.

In mid-June, 2011, the Board issued a Notice of Proposed Rulemaking in which it proposed amending its rules to speed up the representation process and reduce litigation of various issues.

According to the Board’s press release, the NLRB received more than 65,000 written comments on the proposal and heard testimony from 66 speakers at its two-day hearing in July 2011.

In light of the fact that the Board may be reduced to two Members after December 31, 2011, when Member Becker’s recess appointment expires, Board ChairmanPearce has indicated that the final rule will be limited to several provisions designed to reduce unnecessary litigation. This will also, perhaps reduce or eliminate anticipated litigation over the implementation of the new rules by management groups.

The meeting of the Board’s three members at NLRB headquarters in Washington,D.C. will be open to the public, but no public participation will be allowed.  Members Hayes and Becker will discuss and vote on a resolution whether to accept Chairman Pearce’s proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration, according to the Board’s press release.

Requests to attend the November 30 meeting should be sent to publicmeeting@nlrb.gov with the following text in the subject line: REQUEST TO ATTEND PUBLIC MEETING REGARDING RIN 3142-AA08. The press release states that the meeting will also be webcast with a link available through the agency’s website, www.nlrb.gov.