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NLRB Revives “Election Reform” Rulemaking

On February 6, 2014 by Schnader in Labor and Employment

By Scott J. Wenner

Today, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking (NPR) on amendments to its representation election rules and procedures. The proposed rules, which the Board characterizes as identical to changes it initially proposed in June 2011 would, if they become final, significantly expedite elections, delay the process for challenging elections, require employers to provide employee e-mail addresses to union organizers and make other changes to the election process.

The 2011 NPR was eventually published as a final rule six months later, after a contentious notice and comment period that produced voluminous objections. The final rule nonetheless adopted much of the proposed rule as written, but deferred some parts of it for further consideration at a later date.  In 2012, after a lawsuit was brought to enjoin enforcement of the rule, led by the U.S. Chamber of Commerce, a federal judge in Washington, D.C., declared the rule invalid because it was adopted without a valid quorum of the Board.

According to the Board’s press release, the NPR was approved 3-2 on a strictly party-line vote of the members. In announcing the NPR, NLRB Chairman Pearce characterized the intent of the amendments as to “improve representation case procedures” and said they were aimed at “modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay.”

The neutral sounding purposes announced by the chairman must be questioned in view of the strict division by party among the members in approving the NPR, by the immediate and forceful negative response by employer representatives and the leadership of the House Education & the Workforce Committee , and the equally vocal support for the proposed rule by union leaders after the NLRB’s announcement of the NPR yesterday.

The “reforms” (using the Board’s terminology) proposed in the NPR include:

  • a substantial reduction in the time between the filing of an election petition and the date of an election – to as little as 10 days,
  • a requirement that employers include telephone numbers and e-mail addresses on election lists,
  • and a deferral of all challenges and appeals into a single post-election appellate process – rather than permitting election-related challenges to delay an election.

There is a 60-day public comment period required by law during which anyone can file written comments. The comment period will end April 7. The Board has announced that it will re-review all comments filed in connection with the June 2011 NPR.  Given the strength and vigor of the opposition, it is virtually certain that challenges again will be filed, but on the merits this time, once the Board publishes a final rule.