On the heels of its decision earlier this month to abandon its previously enjoined notice posting rule, last week the National Labor Relations Board (NLRB) formally rescinded its “quickie election” rule that we have covered in the past. A federal district court in Washington, D.C. had previously struck down the rule and the D.C. Circuit had held the NLRB’s appeal in abeyance while the Supreme Court considered the Noel Canning case involving challenges to the Obama administration’s recess appointments to the Board. After the D.C. Circuit postponed its decision, the NLRB dropped its appeal of the case.
Now that the NLRB is at full strength with a properly appointed five-member panel, we expect that the Board may make another run at the rule, either as published earlier or in a modified form. The NLRB took the first steps toward that end by rescinding its former quickie election rule “consistent with the district court’s decision in Chamber of Commerce of the U.S. v. NLRB setting aside that rule.” The rule, originally published in the Federal Register in December 2011, amended the Board’s representation election procedures to substantially reduce the time between the filing of a petition and the conduct of a union representation election. The now-rescinded rule went into effect on April 30, 2012.
In an interview with media outlet Law360 last week, NLRB Chairman Mark Gaston Pearce said that the Board is “assessing its next move,” and he suggested that he will push the Board to publish a new rule by early next year:
Unlike the litigation over the poster rule, the election rule decision did not address the substance of the regulations themselves, so the Board is free to repropose them. Without stating what steps the Board will ultimately take, Pearce reaffirmed his commitment to the rule and said he would like to see it done within the year.
Both Chairman Pearce and Member Philip Miscimarra confirmed in the article that the Board plans a “very significant output” in the next year.