In a controversial move, the National Labor Relations Board (NLRB, or Board) recently issued a new rule for union elections that was to take effect on April 30, 2012. Under that rule, employers presented with election petitions would face elections far more quickly and would have far fewer opportunities to challenge any problems with the election process. As its justification, the Board asserted that the rule was "intended to eliminate unnecessary litigation, delay, and duplicative regulations."

However, a last-minute effort to sidetrack the rule has met with some success. A federal district court declared the rule void because the NLRB was comprised of only three members at the time the rule was promulgated (at full strength the NLRB consists of five members), and only two of those members participated in the decision to adopt it. (The third member, Brian Hayes, did not vote on the rule). The court held that in the absence of three "participating" NLRB members, the Board lacked the necessary three-member quorum to approve the rule.

The court did not otherwise rule on the validity of the rule on its merits. In the meantime, the next move is the NLRB's. It may appeal the decision to the federal appellate court. Or, the current NLRB—now at full strength—may bring up the proposed rule changes for another vote. However, the current composition of the NLRB also presents some uncertainty as to whether adopting the changes now will stand up to a legal challenge. Three of the five current NLRB members are presidential recess appointments, and those recess appointments have been challenged in a separate court action.

While this process works itself out, representation elections will continue to be processed under the old procedures.

Should the new rule ultimately go into effect, it will have a major impact on how union elections take place. With all the changes it contains, the rule would mean much quicker elections facilitating smaller units of employees, thereby favoring unions. Employers could expect to see a union election take place as soon as 14 to 21 days after a petition has been filed. Under long-standing existing procedures, which allow parties to file briefs and present issues to the NLRB itself, most elections wind up being scheduled about 38 to 42 days after the filing of the petition.

The period of time between the filing of the petition and the holding of the election is critical for an employer's success in the vote. It is in this interlude that management has the opportunity to communicate its position on unionization to its employees, many of whom would already have signed the union authorization cards that enabled the election. A truncated campaign period can leave an information void, heightening the risk that employees may vote in favor of union representation without having the benefit of management's alternative viewpoints. Further, under the new rule the disputed supervisory status of certain employees would not be resolved until after the election. Those employees would likely wind up voting subject to challenge, and the uncertainty would leave employers more vulnerable to unfair labor practice findings based on the conduct of employees whose supervisory status prior to the election was in dispute.

In light of these developments, employers should be more vigilant than ever in recognizing the early warning signs of possible union activity. Presence of union flyers, increases in complaints, and breakdowns in communications are the typical warning signs that an employer either is already being targeted by a union or may be targeted at any time. Anticipating and responding swiftly, legally and effectively to such developments can sometimes head matters off at the pass.