Today, the National Labor Relations Board announced that it was reissuing its “quickie election” rule in a new Notice of Proposed Rule Making. The Board previously issued this proposed rule back in June 2011, and a final, slimmed-down version was later struck down by federal courts for procedural reasons. Most importantly for employers, though, today’s release explains that the new rule is not the scaled back version, but is in substance “identical to the representation procedure changes first proposed in June of 2011.” Both Republican members dissented from the reissuance of the proposed rule.
The NLRB’s proposed quickie election rule would drastically change procedures governing union elections under the National Labor Relations Act. We have covered the rule in detail in past alerts (January 29, 2014; January 8, 2014; May 15, 2012; April 30, 2012; April 26, 2012; April 16, 2012) . Under the quickie elections rule, employers would face representation elections more quickly—in as few as 10 days after a petition is filed, as opposed to the current 38-day average. Employers also would have far fewer opportunities to challenge any problems with the election process. The Board’s press release asserts that the quickie elections rule is intended to “modernize” the process and to eliminate “[u]nnecessary delay and inefficiencies.” However, opponents of the rule have decried it as a partisan attempt to speed up the union election process while limiting employers’ ability to participate in it. As we noted back in 2012 when the Board prepared to implement the new rule, the Acting General Counsel released a set of guidelines and Frequently Asked Questions further clarifying the significant acceleration in election procedures that employers would face.
When it first proposed the rule two and a half years ago, the NLRB received a tsunami of comments from the labor and business communities that led to a nasty public disagreement among NLRB members. Despite the public outcry, the NLRB announced in December 2011 that it would issue a scaled back version of these hotly debated changes. Ultimately, federal courts scuttled that rule in May 2012 on procedural grounds due to the Board’s failure to garner a quorum in favor of implementing it. With a full complement of members in place, the Board’s Democratic majority is forging ahead without any quorum concerns. Even more importantly, the Board appears to have abandoned any plan to scale back the rule this time around.
With the new Notice of Proposed Rule Making, the public has a new 60-day period to file comments with the Board. The Board did announce that it will re-review all previously filed comments from 2011, and encouraged commenters not to “duplicate [their] prior efforts.” After the comment period expires, the Board will need to consider and address any comments and prepare a final rule. We expect that business groups will attempt to challenge a final rule as soon as it is issued, but employers should prepare now for the implementation of the rule, since legal challenges may not prevent the NLRB from implementing it, at least initially.