As expected, the NLRB has announced that it is again proposing regulations to amend its representation case election procedures. A copy of the Notice of Proposed Rulemaking submitted to the Federal Register for publication can be viewed here. The proposed regulations appear identical to those the Board attempted to promulgate in 2011. At that time the Board received written comments and held a two-day public hearing where dozens of interested parties testified.
In the end, the Board promulgated only a portion of the regulations, which were immediately challenged in litigation. A federal district court in the District of Columbia overturned the promulgated regulations, holding that the Board had acted with only two members to promulgate them, which was not a sufficient quorum. The Board appealed the district court decision to the District of Columbia Circuit. While the Board’s appeal was pending, that court issued its Noel Canning decision holding that certain recess appointments to the Board had been unlawful. The Noel Canning issue was quickly asserted as an additional ground for overturning the promulgated regulations and the Board’s appeal was placed in abeyance pending the outcome of the Supreme Court’s review in Noel Canning, as we discussed here.
In the face of these major legal entanglements and the resulting delay, the Board voluntarily dismissed its appeal and withdrew the promulgated regulations. As we discussed here, this was a tactical move designed to clear the way for again proposing the regulations.Although it is possible that the Board could have attempted to rely on the record created in 2011, it is again taking comments through April 7, 2014, with reply comments due by April 14, 2014. The Board has also said it would hold another public hearing the week of April 7, 2014.