The National Labor Relations Board (NLRB) re-issued its proposed amendments to the existing rules and regulations governing procedures in union representation cases to allow for "quickie elections." The NLRB first issued these proposed amendments in June 2011, and after a firestorm of criticism and backlash from the business and labor sectors, finalized a revised version of them in December 2011. However, the amendments were quickly challenged in federal court because the NLRB lacked a quorum to properly promulgate the rule. Following a court order enjoining the rule and an appeal by the NLRB, the NLRB appeared to change course in December 2013 by dropping its appeal, rendering the 2011 amendments void.
But on February 5, 2014, the NLRB re-issued the proposed amendments, seeking to implement language that is identical to the amendments first proposed in June 2011. Critical to the NLRB's decision to re-issue the rule is the fact that it is now operating with a full contingent of properly confirmed members, who voted 3-2 in favor of renewing the earlier amendments (with members Philip A. Miscimarra and Harry I. Johnson III dissenting). In a press release about the decision to re-issue these rule changes, NLRB Chairman Mark Gaston Pearce commented, "With a Senate-confirmed five-member Board, I feel it is important for the Board to fully consider public comment on these proposed amendments, along with the comments we previously received in 2011." Pearce also asserted that "[t]hese amendments would modernize the representation case process and fulfill the promise of the National Labor Relations Act."
The proposed rule changes would expedite pre-election processes in union representation cases and limit the post-election process in a manner that would significantly impede an employer's right to communicate with its employees and petition the government for redress. The rule focuses primarily on union representation cases in which parties cannot agree on critical issues such as the definition of the appropriate employee voting group. It significantly changes existing procedures in these types of cases by limiting the issues to be determined in the pre-election process and precluding pre-election review of regional office decisions in most cases. This rule will result in elections being held in a much shorter timeframe than they are now (as quickly as 14 days from the filing of an election petition in some instances).
Because the NLRB must first solicit comments from the public before finalizing these rule changes, such comments will be invited until April 7, 2014, when the NLRB will hold a public hearing on the matter. In the months following, the NLRB will to respond to the public comments and either revise its proposed amendments (as it did in December 2011) or leave them unchanged. Regardless of the NLRB's final decision on whether to revise the proposed amendments, it is expected that a host of business-sector advocacy groups will again pursue litigation in an attempt to overturn the new rules.