NLRB “Quickie”Election Rules:
Lurking in the Wings?
Last November the National Labor Relations Board published its semiannual agenda, and addressed the quickie election rules that were invalidated by a federal district court less than one month after issuance. The court ruled that they had been adopted without a proper Board quorum. These rules were suspended pending appeal of the case and the U.S. Supreme Court’s consideration of Noel Canning (the case regarding the validity of President Obama’s recess appointments of NLRB members in January 2012). Recent reports of the arguments on recess appointments before the High Court this week indicate skepticism about the constitutionality of the appointments.
Last month the NLRB voluntarily dismissed its appeal – removing the quickie election rules from the litigation track and repositioning them on the agency’s agenda for adoption and implementation.
Also known as ambush election rules, these regulations would cut in half the time between a union’s filing of a representation petition and an election – the crucial period for an employer to counter a union’s organizing efforts – from a 42-45 day period to a 10-21 day period. They also would limit the scope of pre-election hearings and provide the agency with the discretion to review post-elections decisions, rather than automatically requiring such review.
This time around, the NLRB may again propose more severe rules like the ones that it ultimately did not adopt in 2012 – including requiring the employer to produce a voter list with employees’ phone numbers and email addresses prior to the pre-election hearing. This would give a union direct employee access before any unit disputes are determined. Another requirement would speed up the timing of a pre-election hearing, further shortening the pre-election period.