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NLRB Hints That “Ambush” Election Regulations May Be Rescinded

Things are moving fast and furiously at the NLRB.  Last week we saw the new General Counsel issue a sweeping memo which rescinded many policy guidelines and initiatives of his predecessor and highlighted the Board precedent from the last eight years that may be overturned.

This week the NLRB posted a Request For Information on its website, soliciting comments about whether the controversial election regulations (sometimes called “ambush” or “quickie” election rules).  The Request invites comments on three questions:

  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 Should the 2014 Election Rule Be rescinded?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 Representation Election Regulations.  If the Board should make changes to the prior Representation Election Regulations, what should be changed?

The submission window is open from December 13, 2017 to February 12, 2018.

The 2014 election rules are, like many things in labor law in the current climate, controversial, which is an understatement among understatements.  The average time in which an election was held under the prior rules was around 35 days from the date of petition.  The new rules substantially shortened the time for elections and also delegated to the Regional Director a great amount of discretion to decide things like whether a hearing would be held, whether briefs could be filed, etc.  Unions claim the new regulations  brought a long needed fix to the system that allowed employers to delay representation elections.  Employers claim that the rules dispense with much of the due process involved in litigating an important issue and bring about elections so quickly that it barely allows for communication about the issue.  Whatever the case, the Board has struggled to consistently interpret the new rules.

The quiet manner in which comments are solicited on this important issue are reminiscent of the Department of Labor’s notice to rescind the persuader regulation, which is to say there was hardly any fanfare associated with it.  We will keep you posted of further developments.

© 2018 Proskauer Rose LLP.


About this Author

Mark Theodore, Employment Attorney, Proskauer Rose

Mark Theodore is a Partner in the Labor & Employment Law Department in the Los Angeles office. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.