Labor Board Explores Revamping Union Election Procedures

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By Hassan A. Kanu and Lawrence E. Dubé

The National Labor Relations Board is seeking public input on whether to retain, modify, or rescind a 2014 rule change that streamlined the board’s processing of union representation cases.

In a request for information to be published in the Dec. 13 Federal Register, an NLRB majority consisting of Chairman Philip A. Miscimarra (R) and Republican Members Marvin E. Kaplan and William J. Emanuel said they have opted to review and reconsider a rule change that was approved in 2014 by a Democratic majority then controlling the board. The new request for information invites the public, as well as the NLRB’s general counsel and regional directors, to weigh in on the 2014 rule change, referred to as the Election Rule.

Management lawyers and groups have taken to derisively calling the action the “quickie election” rule or the “ambush election rule,” and have argued that it leaves employers with little time to educate their employees about the pros and cons of unionizing. The labor and union community has generally argued that employers have plenty of other opportunities to communicate with their workers. The board’s own data since the rule was passed in 2014 and a Bloomberg Law analysis has shown that the rule has had a negligible effect on union’s win rates in elections—less than a 1 percentage increase since its implementation.

The request for information reopens a discussion about a controversial subject, but the debate will now take place before a board controlled by President Donald Trump’s appointees. Miscimarra’s term on the board ends Dec. 16, but it’s expected a Republican will be nominated by the president and confirmed by the Senate to join Kaplan and Emanuel in 2018.

Debate Reopened on Procedures

The Obama-era rule change was published in December 2014 after a 3-2 vote by the board, which then had a Democratic majority.

Then-Chairman Mark Gaston Pearce (D) and then-Members Kent Y. Hirozawa (D) and Nancy J. Schiffer (D) approved changes in the NLRB’s procedures for hearings and elections to determine union representation, including several provisions that shortened the interval between the filing of an election petition and actual balloting.

Then-Members Miscimarra and Harry I. Johnson (R) dissented from the adoption of the election rule changes.

One of the most controversial changes made by the Election Rule allows NLRB regional directors to preclude parties from litigating some legal issues in pre-election hearings. By deferring litigation until after employees vote, elections take place sooner, but critics have complained that delaying resolution of some disputes may complicate elections and actually prolong litigation.

Employers Decry ‘Quickie Election’ Rule

Some employers and others in the management community have also referred to the board’s 2014 action as a “quickie election” rule that deprives employers of time to express their views on unionization and rushes employees into voting on union representation.

Acting under the Congressional Review Act, both houses of Congress passed a resolution disapproving the rule change and stating it should have no force or effect, but President Barack Obama vetoed the resolution. Several federal courts rejected challenges to the Election Rule, which has been in effect since April 2015.

Members Pearce and Lauren McFerran (D) wrote lengthy dissents objecting to the Trump board’s request for information. Pearce, who said the board’s announcement should have been titled a “Notice and Quest for Alternative Facts,” argued that the 2014 rulemaking has reduced the median time from petition to election by more than three weeks without causing the “procedural dysfunction” that critics predicted.

McFerran argued that the request for information “establishes an unnecessarily rushed comment process that is likely to frustrate those interested parties who might actually hope to provide input.” McFerran called criticism of the 2014 rule change “unfounded” and said there is no justification for revisiting the rule.

Responding to the dissents, Miscimarra, Kaplan, and Emanuel said the board’s request for information “does not suggest even a single specific change in current representation-election procedures.” The NLRB majority said “the Board merely poses three questions, two of which contemplate the possible retention of the 2014 Election Rule.”

Instructions for filing responses to the request for information will be posted on the NLRB’s website. Responses, limited to 25 pages, must be received by the NLRB on or before Feb. 12, 2018.

To contact the reporters on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com and Lawrence E. Dubé at ldube@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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