NLRB Taking Steps to Review Quickie Election Rule

What a difference a presidency makes. Under President Trump, the National Labor Relations Board is continuing to take steps to distance itself from some of the more controversial decisions it issued during the administration of President Barack Obama.  This latest action came on January 26, 2018, when the Board announced it was extending the deadline for filing responses to the Board's Request for Information, regarding the Board’s Representation Election Regulations.

In December, 2014, the NLRB issued new rules to its Representative Election Regulations in an effort to streamline the election process.  These regulations, largely seen as benefiting the interests of labor unions, were met with criticism from the business community, as well as from Republicans in Congress.  Among other changes, this new rule required Employers to provide Unions specific information regarding all their employees, limited the issues that an Employer may address at a pre-election hearing, and eliminated the waiting period between the announcement of the decision to hold an election, and the election itself.  This last change proved to be especially controversial as it hampered an Employers ability to respond to a union’s campaign, and inspired the rules moniker - the “Quickie Election Rule.”

In 2015, Congress passed a joint-resolution to overturn these regulations, but that resolution was vetoed by President Obama and the rule went into effect.  But as this blog has previously shown, the Trump administration has shown to be aggressive in  reversing Obama-era decisions. On December 11, 2017, the NLRB published a Request for Information, seeking information from interested parties regarding the 2014 Rule.  Specifically, the Board asked:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Election Regulations. If the Board should make changes to the prior Election Regulations, what should be changed?

This request, which was published over the dissent of two NLRB Board Members, originally required responses to be filed by Monday, February 12, 2018. In its Request for Information the Board sought information from unions, employers, associations, labor-law practitioners, academics, members of Congress, anyone from the general public who wished to provide information, as well as the views of the new NLRB General Counsel, Peter Robb, and the Regional Directors who had experience working with the 2014 Rule.  The Board contrasted this Request for Information with the process used to enact the 2014 Rule, which it criticized for starting with a lengthy proposed rule outlining dozen of changes without any prior requests from the public.  With this deadline pushed back to now March 19, 2018, any interested party will have more time to craft a submission for consideration. 

For critics of this rule, the fact that the Board has requested information is an encouraging sign that changes may soon be on the way. Should the Board take action to revise or rescind the 2014 Rule, an announcement would come at some point following the March 19, 2018 deadline.  Stay tuned to this blog for any additional updates along the way.

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