It's Back – NLRB's Revives Quickie Election Rule That May Soon Be Here to Stay

by Fisher Phillips
Contact

The National Labor Relations Board has just announced that the agency would be reissuing its proposed “quickie election” amendments to rules governing representation case procedures.  The news came in the form of a press release, describing plans to publish a formal Notice of Proposed Rulemaking, incorporating changes that “are identical to the representation procedure changes first proposed in June of 2011.”

Fisher & Phillips initially advised employers of the proposed rule nearly three years ago when it was first published back in June of 2011

(Unions In Decline? Labor Board To The Rescue!)

At that time, we referred to procedures that would expand on the amount and timing of employee information to be disclosed following an election agreement, and on any anticipated employee eligibility issues.  We also explained that the “streamlined” procedures could effectively cut the campaign period between representation petition and election from six weeks to less than three, and that the new rule could preclude resolution of supervisory status until after all the ballots are already in the box.

In early December of that year, we issued another Alert informing businesses that the Board had approved a resolution to move forward with a vote on the new rule over the dissent of then member Hayes, who warned that the “devil is in the details”(NLRB Moving Forward With New Election Rules). In an apparent rush to vote on the rule prior to the expiration of member Becker’s recess appointment (and resulting loss of quorum), the Board voted on and subsequently published a final rule in late December of 2011, amending current representation procedures in a number of significant ways, effective April 30, 2012.  As we explained at that time:

A shortened election cycle places employers at serious disadvantage when it comes to educating employees on the detriments of union representation and training their supervisors to lawfully respond to union activity.  It also leaves employees with less time to consider all the facts for purposes of making an informed choice on whether they want to be represented by a union.  Worse yet, the new rule will essentially compel employees to cast their ballots before any lingering voter eligibility issues are resolved, effectively precluding them from understanding the full scope and ramifications of their decision.

(NLRB Publishes Final Rule Changing Representation Election Procedures)

While some may not remember, the quickie-election rule was actually the law of the land for the first two weeks of May, 2012.  We made clear at that time, that: “A 50% reduction in lead time between petition and election means that all things being equal, employees will be casting ballots that much closer to the confusion and negative emotion that presumably fueled the union card-signing activity to begin with. Consequently, all employers will have to be far more proactive in advance of any representation petition, and more nimble, efficient and direct with any communications issued thereafter.” 

(NLRB Quickie Election Rule Now In Effect)

On May 14 of that year, however, the U.S. District Court for the District of Columbia struck down the rule on the basis that only two of the three Board members serving at that time actually participated in the vote to approve the final rule, thereby depriving it of the required procedural quorum. 

(Court Strikes Down NLRB "Quickie Election" Rule)

The Board has since allowed the appeals in that case to run their course while restoring the viability of its own quorum.  This past year, the NLRB returned to “full strength” in the form of five confirmed members for the first time in over a decade.  A reconstituted NLRB is expected to publish the proposed rule tomorrow, and the comments period is expected to close on April 7th (with reply comments due a week later).

Although the Board is characterizing the new rule as “identical” to the one first proposed over two years ago, it is worth noting that this time around, the Board is now suggesting that employee e-mail addresses will also have to be disclosed.  Consequently, while the full extent of the rule remains to be seen, the devil will presumably remain in the details. 

Equally important, the procedural impediments that doomed the rule the last time around will be long gone by the time the final rule is put up for vote.  As things stand now, the two Republican members may choose to vote against the rule or abstain, but in either case the three remaining Democratic members would constitute a lawful quorum should they vote for its passage as anticipated.

In the meantime, employers are encouraged to consider the practical implications of a quickie election rule on their own workplace, and to take proactive measures to develop a lawfully tailored response plan as soon as reasonably possible.  Fisher & Phillips attorneys stand ready to assist in that regard. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.