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May 7, 2012

On Saturday, April 28th, the United States District Court for the District of Columbia denied the Chamber of Commerce of the United States of America's (the "Chamber") and the Coalition for a Democratic Workplace's (the "Coalition") motion to temporarily stay the implementation of broad changes to the National Labor Relations Board's election procedures. Last December, the NLRB announced its adoption of a final rule amending the procedures in election cases filed with the Board. These amendments took effect on April 30, 2012.


Almost immediately after the NLRB announced its final rule concerning election procedures, the Chamber and the Coalition filed a complaint for injunctive and declaratory relief against the NLRB alleging that:


  1. The Board's final rule:
    • is not in accordance with the National Labor Relations Act; 
    • exceeds statutory authority; and
    • is contrary to the 1st and 5th Amendments to the United States Constitution
  2. The Board acted in an arbitrary and capricious manner and abused its discretion in enacting the final rule.


On Friday, April 27th, the Chamber and the Coalition filed their motion to temporarily stay the April 30th implementation of the election procedure changes in order to allow the D.C. Circuit to decide the issues raised in their complaint before the final rule goes into effect. Despite the Chamber's and Coalition's arguments, United States District Court Judge James E. Boasberg denied their motion, noting that any injury to the plaintiffs would not be irreparable because the Court would issue its decision on the issues raised in the complaint by May 15, 2012 - before any potential election will take place under the new election procedure.


As a result, the changes to the NLRB's election procedures took effect as of April 30, 2012.


Through its final rule, the Board makes eight specific amendments to its existing regulations governing representation case procedures. If the Court upholds the NLRB's final rule, the election process will most certainly be expedited with elections held in a much shorter timeframe. Currently, the NLRB's timeline for conducting elections is 42 calendar days from the date a representation petition is filed. Employers should brace themselves for the likelihood that representation elections could be held within 20 days from the filing of a representation petition. Given the expedited election period, employers will have significantly less time to provide employees with information supporting the employers' position concerning union representation and collective bargaining. Similarly, employees themselves will have less time to make an informed choice of whether to support being represented by a union.


In February, the parties filed competing motions for summary judgment, which as of today have not yet been decided by the Court.


We will continue to monitor these recent developments and will notify you of any significant updates.  


Labor, Employment & Employee Benefits Group

Mirick O'Connell

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Worcester, MA  01608

t 508.791.8500

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Westborough, MA  01581

t 508.898.1501

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Mirick O'Connell is a full-service law firm with offices in Worcester, Westborough and Boston, Massachusetts.  The Firm's principal practice groups include Business; Creditors' Rights, Bankruptcy and Reorganization; Elder Law; Family Law and Divorce; Intellectual Property; Labor, Employment and Employee Benefits; Land Use and Environmental Law; Litigation; Personal Injury; Public and Municipal Law; and Trusts and Estates.
This client alert is intended to inform you of developments in the law and to provide information of general interest.  It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.