On December 12, the NLRB, in a 3-2 vote along party lines, appeared to move toward revising or rescinding the Obama-era regulations governing Board representation elections – the so-called “quickie election” rule. As a result of that vote, the Board decided to issue a Request for Information seeking public comment as to whether the Board should revise the regulations or rescind them.
Please Note: Instructions for responses to the Request for Information are included in the RFI itself and are also posted on the NLRB's website. Responses are limited to 25 pages and must be received on or before February 12, 2018.
Democratic Members Mark Gaston Pearce and Lauren McFerran dissented from the decision to issue the RFI. Member Pearce argued that the RFI should be titled a “Notice and Quest for Alternative Facts,” contending that the current rule reduced the median time from petition to election by more than three weeks and had not caused the “procedural dysfunction” that critics had predicted. (He apparently has not been involved in front-line handling of a representation election case in recent years, where “procedural dysfunction” is commonplace). Member McFerran argued that the notice “establishes an unnecessarily rushed comment process that is likely to frustrate those interested parties who might actually hope to provide input.” She asserted that criticism of the current regulations is “unfounded” and that there is no justification for the Board to revisit the rule.
The Obama-era election regulations, effective since 2014, were intended to ease the election process for organized labor by (1) speeding up pre-election steps, (2) establishing complex rules for employers and their legal counsel to navigate, and (3) pushing back legal challenges related to the election process, including supervisory status and eligibility issues, until after the elections. The Board, through its Regional Offices, abandoned prior polices that generally assured a 25-day period between the issuance of an election order and the first day of the election.
The rule also requires employers to release multiple types of employee contact information to union organizers (telephone numbers, email addresses, and home addresses), potentially releasing information that employees do not want to have released.
Review of the rule was not wholly unanticipated. Opponents have argued that the rule is fundamentally unfair to employees who, with the “speed-up” in election processing have little, if any, time to digest the competing messages and make informed choices regarding the important issue of union representation. Opponents also argue that it is prejudicial to force employers to jump through multiple “legal hoops” and delay making challenges until after much of the “damage” has already been done.
Proponents of the rule argue that union representation is a matter between employees and the unions, and that employers don’t even have legal standing.
But with the Republican majority on the Board, interested observers should look for change or rescission in the coming months. In this regard, we note that Chairman Philip Miscimarra’s term ended on December 16. That leaves the Board with a “2-2 tie” of Democrats and Republicans. President Trump is reportedly considering management-side lawyer John Ring of Morgan Lewis & Bockius, LLP, as his nominee to fill the third Republican vacancy.
...Interesting times at the Board.