NLRB Revisits NSBA-Opposed Elections Rule

February 5, 2014

120416_nlrb_logo_ap_328On Wednesday, Feb. 5, the National Labor Relations Board (NLRB) announced plans to move forward on its elections rule which would speed up the elections process in a unionizing campaign. The rule, which was struck down in 2012 by the U.S. District Court for the District of Columbia, will be published by the NLRB in the Federal Register as a notice of proposed rulemaking (NPRM) tomorrow, Thursday, Feb. 6.

The U.S. District Court struck down the rule given that only two NLRB board members voted to adopt it, one shy of the required three votes for a quorum. The quorum will not be an issue this time, however, as three of the five NLRB members—all Democrats—NLRB Chairman Mark Gaston Pearce, Kent Hirozawa and Nancy Schiffer all voted to reissue the proposed rule. The two Republicans, Philip Miscimarra and Harry Johnson III both opposed moving forward on the rule.

As initially introduced back in 2011, the elections rule would:

  • Require employers to give union organizers electronic files with employees contact information now to include cell phones and e-mail addresses;
  • Shorten the time within which a union election must take place following the filing of an election petition by removing the 25-30 day waiting period, allowing either side to request reviews, requests that are now rarely filed or granted;
  • Limit pre-election processes by deferring litigation of most voter eligibility issues until after the election;
  • Make post-election reviews discretionary; and
  • Require pre-election hearings to begin just seven days after a petition is filed.

Although the formal NPRM has not yet been made available, the announcement from NLRB appears to signal this rule will be very similar to the June 2011 rule.

Among NSBA’s key concerns with the rule as previously promulgated is the fact that, under the initial rule, most would have to be held within 10 to 21 days after the filing of the petition rather than the 35 to 40 days after filing typical today. Given that unions will have spent months organizing and laying the groundwork before filing an election petition, this is a clear disadvantage to the small employer who has little, if any at all, expertise on labor law and comes to the table with drastically fewer resources than union organizers.

NSBA was vehemently opposed to the elections rule last go-round and will continue efforts to stop this damaging rule from becoming law. The deadline for public comments is April 7, 2014.