Monthly Archives: January 2012


By: Kristofor L. Hanson

The National Labor Relations Board (“Board”) has once again postponed the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, D.C., hearing a legal challenge regarding the rule. We alerted you to this rule and its initial postponement in previous E-Alerts of October 20, 2011 and December 23, 2010.

The new implementation date is April 30, 2012, which coincides with the effective date of the Board’s changes to representation election procedures. The Board’s announcement states that it has determined that postponing the effective date of the rule will facilitate the resolution of the legal challenges that have been filed concerning the rule.

If the selection criterion is challenged by a disabled individual, an employer must also be able to establish that the individual does not meet the standard and is unable to perform the essential functions of the job, even with a reasonable accommodation. In its letter, the EEOC suggested that employers, as a form of reasonable accommodation, consider an applicant’s work history and/or allow the applicant to demonstrate their ability to do the job’s essential functions as part of the application process. However, an employer is not required to prefer a disabled applicant over other applicants who are more qualified.

Under the rule, most private sector employers will be required to post an 11-by-17-inch notice of employee rights. The notice is available at no cost from the Board through its website,

If you have any questions about this material, please contact Kris Hanson or any other attorney you have been working with here at Lindner & Marsack, S.C.


By: Kristofor L. Hanson

In an effort to push through significant changes to representation election procedures before losing a quorum, on Tuesday, December 20, the National Labor Relations Board (“Board”) issued a final rule on what has become known in some circles as the “quickie” election rule.

The final rule, set to take effect on April 30, 2012, seeks to significantly reduce the amount of time between the filing of the petition and the union representation election from 42 days to 25 days and potentially as little as 15 days after the filing. Only in the rarest of circumstances would elections under the new rule be held more than 25 days from the filing of the petition.

The Board asserts that under the new rule regional hearings will be limited only to issues related to the question of whether an election should be conducted. In addition, all appeals to the Board concerning decisions of the regional directors will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process. The rule also makes all Board review of regional director decisions discretionary, which will leave more final decisions in the hands of the regional directors.

Opponents of the rule are already mounting challenges to it. The House of Representatives has passed a bill to undo the rule and the United States Chamber of Commerce, just hours after the board voted to approve the final rule, filed suit in federal court to block its enforcement. We will keep you advised as to any developments.

Specifically, the rule makes seven significant changes to the present election procedure, as it:


  • Amends board regulations to state that the sole purpose of pre-election hearings is to determine whether a question concerning union representation exists that should be resolved in a secret ballot election.
  • Gives Board hearing officers authority to limit the evidence in such pre-election hearings to genuine issues of fact material to the existence of a question concerning representation.
  • Provides that post-hearing briefs may be filed only with permission of the hearing officer, not as a matter of right.
  • Amends the Board’s rules to eliminate parties’ right to seek Board review of regional directors’ pre-election rulings while allowing parties to seek post-election review of such rulings.
  • Eliminates language in the Board’s current statement of procedure that recommends a regional director not schedule voting within 25 days of directing an election.
  • Amends the Board’s rules to provide that requests for special permission to appeal a regional director’s preelection ruling will be granted only in extraordinary circumstances.
  • Amends board rules to make Board review of post-election disputes discretionary.

President Obama Appoints New Board Members

Since the announcement of this final rule, President Obama has made additional appointments to the Board, two Democrats and one Republican, thereby retaining a Democratic majority on the Board despite the recent departure of one Democratic member. Republicans have challenged President Obama’s appointments, arguing that the President has overstepped his authority in making these appointments without congressional approval.

The new Board as appointed by President Obama will likely continue the recent course of implementing rules that are designed to increase union membership. As the challenge to his latest appointments unfolds, we will keep you apprised of any developments.

If you have any questions about this material, please contact Kris Hanson or any other attorney you have been working with here at Lindner & Marsack, S.C.