Yesterday, February 5, 2014, the NLRB officially announced the reissuance of its controversial proposed election rule changes that were first proposed in 2011 and promptly dubbed by employer groups as the “quickie election” and “ambush election” rules. In a statement issued by Board Chairman Mark Pearce, the NLRB yesterday stated: “Unnecessary delay and inefficiencies hurt both employees and employers. These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union.”
According to the NLRB’s press release, the proposed rule changes would:
Allow for electronic filing and transmission of election petitions and other documents; Ensure that employees, employers, and unions receive and exchange timely information they need to understand and participate in the representation case process; Streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation; Include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and Consolidate all election-related appeals to the Board into a single post-election appeals process.
These proposed rule changes are substantively identical to those proposed in 2011. In 2011, then Republican and dissenting Board Member Brian Hayes predicted the NLRB’s proposed election rule changes would shorten the period for union elections from the current average of approximately 40 days to as few as 10 to 21 days after a union election petition is filed. The two current Republican members of the Board likewise dissented on the NLRB’s decision to re-issue the proposed changes now. In their joint dissent, Members Miscimarra and Johnson stated that the proposed changes include provisions that are “contrary to the Act and ill-advised.”
The NLRB’s proposed changes to its election rules and regulations are now open for public comment until April 7, 2014. If the history of the 2011 proposed rule changes is any guide, the 2014 proposed rule changes will meet stiff opposition from employer groups and are not likely to become effective in the immediate future. The original rule changes were published for public comment on June 22, 2011 and, six months later on December 22, 2011, the NLRB formally adopted them with an effective date of April 30, 2012. The rule changes were struck down two weeks after they became effective by a U.S. District Court on the grounds that NLRB did not have the required three-member quorum when it issued the 2011 rule changes. At the time the December 2011 vote was taken, the NLRB was down to three members and the lone Republican member, Member Hayes, did not participate in the Board’s own electronic voting process.
There are currently five NLRB members, so it is unlikely that the 2014 proposed election rule changes will be tripped up over the same technicality that stopped the NLRB’s 2011 initiative to speed up elections. However, employer groups will surely exhaust all efforts to challenge the implementation of these proposed rule changes in the courts.