November 28, 2022

Volume XII, Number 332


National Labor Relations Board Pauses from Election Rules Amendments

The National Labor Relations Board has rescinded its “quickie election” amendments to the NLRB’s representation case procedures adopted in December of 2011. The Board’s action, announced on January 22, 2014, follows the 2012 decisions of the U.S. District Court for the District of Columbia in Chamber of Commerce, et al. v. NLRB. The court decided the amended rule was invalid because the NLRB lacked a quorum (at least three members) when the change was made. 

The Board’s action does not mean the NLRB has abandoned plans to change its representation case procedures. On the contrary, it is clear the Board still intends to do so; the rulemaking is the sole item on the NLRB’s latest semi-annual regulatory agenda, dated November 26, 2013. Moreover, its new attempt likely will be even broader than its failed 2011 effort. 

The 2011 rule would have significantly changed the process for contesting petitions for union elections and limited an employer’s opportunities to challenge the proceedings before an election is held. It also would have limited an employer’s opportunity to communicate with its employees over issues of union representation before a vote is taken. 

In particular, the rule would have amended existing procedures by:

  • Giving NLRB hearing officers authority to limit issues severely at the pre-election hearing. According to the Board, while the “regional director must determine that a proper petition has been filed in an appropriate unit in order to find that a question of representation exists, the regional director need not decide all individual [voter] eligibility and [bargaining unit] inclusion questions… and the hearing officer need not permit introduction of evidence relevant only to disputes concerning the eligibility and inclusion of individuals.” Thus, employers may not know which employees are eligible to vote until after the election takes place. This issue is particularly problematic with respect to possible supervisors, whose status can determine whether they are representatives of the employer or bargaining unit members.

  • Authorizing the hearing officer to decide whether to permit briefing after the pre-election hearing, and if so, the subjects to be addressed and the time for filing.

  • Consolidating Board review of pre-election and conduct-of-election issues into a single post-election procedure. By eliminating any pre-election appeals, the time between the filing of a representation petition and an election would be reduced significantly. We had estimated that the time would shrink from about 42 days to approximately 28-35 days. (For additional information regarding the possible timing of the election under any new rule that would be similar to the rescinded rule, please see Quickie Election Resolution Adopted, Be Prepared.) 

  • Ending delays in scheduling of elections to permit a pre-election appeal.

  • Granting “special permission to appeal” to the Board in election proceedings only in extraordinary circumstances, where the issue would otherwise evade review.

  • Giving the Board discretion whether to hear and decide any appeals to the election process, whether they concern pre- or post-election issues.

When proposed, the NLRB’s new rule is expected to include all of these provisions, as well as others that were included in the Board’s June 2011 proposal but were not included in its Final Rule as a result of stiff opposition by many employers and business organizations. Among these controversial provisions were: 

  • Electronic filing of election petitions; 

  • Mandatory scheduling of hearings seven days after the notice of hearing is served; 

  • Filing of position statements by the parties in advance of any hearing; 

  • Inclusions of employee telephone numbers and e-mail addresses on theExcelsior voting list; and 

  • Reducing an employer’s time to file an Excelsior list from seven to two working days. 

When the new rule is proposed, it will once again meet with widespread opposition from the business community and additional litigation from business groups.

Jackson Lewis P.C. © 2022National Law Review, Volume IV, Number 25

About this Author

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...