In June 2011, the National Labor Relations Board (“NLRB” or “Board”) proposed an administrative rule that sought to dramatically change the processes and procedures by which labor unions obtain the right to represent private sector US employees. The rule faced fierce opposition, with more than 65,000 comments filed, most opposing the changes, which in substance, would have significantly limited the ability of employers to obtain legal review of NLRB election-related decisions, and would facilitate the holding of secret ballot representation elections as soon as 10 days after the filing of a representation case petition, instead of the typical 42 to 45 days.
Recognizing that the rule, as proposed, faced significant hurdles, on December 2011, the NLRB issued a final rule that included some, but not all, of the initially proposed changes. That rule went into effect in April 2012, but was immediately blocked by a number of legal challenges, including that the Board lacked the necessary quorum to issue the final rule (those following recent NLRB matters will recognize this as the “Noel Canning”-based challenge). After a lower federal court invalidated the rule on that basis, the NLRB appealed. While that appeal was pending, however, the Senate confirmed a slate of new NLRB Members, thereby establishing a new quorum comprised of three Democrats and two Republicans. Shortly thereafter, the NLRB withdrew its appeal concerning the December 2011 rule.
To no great surprise, on February 5, 2014, the newly-confirmed Board, voting 3 to 2 – with the two Republicans dissenting – reissued the rule. What is significant, however, is that the reissued rule is not the scaled-back December 2011 version, but instead is nearly the full rule proposed in June 2011. (A Notice of Proposed Rulemaking, containing the full text of the proposed rule, will appear in the Federal Register on February 6, 2014.)
The old-but-now-new-again proposed rule would alter the NLRB’s representation case procedures to, among other things:
- shorten the period of time between the filing of an election petition and a pre-election hearing from 14 days to seven days;
- limit an employer’s ability to raise certain challenges to an election petition at the pre-election hearing phase, as well as allow hearing officers the discretion to limit or reject evidence submitted by an employer challenging election petitions;
- eliminate an employer’s ability to request review of a regional director’s decision and direction of election until after the election (under the current rules, a request for review may be submitted prior to the election);
- by eliminating the pre-election request for review procedures, allow for elections to be scheduled within a few days after the decision and direction of the election, rather than no earlier than 25 days after the decision and direction of election, as under the current rules;
- require that an employer provide a union with an initial, preliminary voter list at the pre-election hearing, and thereafter provide a second voter list that includes home addresses, telephone numbers, and email addresses of employees, within two days after the scheduling of an election (instead of the current seven days); and
- eliminate an employer’s ability to request a regional director’s review of post-election challenges to voters and post-election objections to election conduct, and instead consolidate all election-related appeals to the Board into a single post-election appeals process.
The NLRB claims that these changes are “aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delays.” Those opposing the rule assert that in reality, what they will do is substantially limit an employer’s ability to raise legitimate legal issues in the face of a union election petition, as well as allow for elections to be conducted before an employer has been provided a full opportunity to present its position to its employees. Indeed, many view the rule as an attempt by a Democrat-controlled NLRB to achieve through administrative rulemaking what could not be achieved in Congress through the passage of the now essentially dead Employee Free Choice Act (EFCA).
At this stage, the Board has invited comments to the proposed rule. (Comments may be submitted on or before April 7, 2014; replies to comments must be filed by April 14, 2014.) The rule is not currently in effect. As noted above, when the NLRB first issued the rule in 2011, more than 65,000 comments were received. A similar number of comments to the now-reissued rule would not be surprising. We will continue to monitor this issue and report on further developments.