NLRB Issues New Proposed 'Quickie' Election Rules

After an unsuccessful effort to implement new election rules in 2011, the NLRB has issued proposed election rules that would substantially speed up the existing union election process.

The National Labor Relations Board (NLRB or Board) announced on February 5 that it will issue new proposed election rules that would substantially change—and speed up—the existing union election process.1 The NLRB stated that these proposed rules are identical in substance to those proposed by the Board in June 2011. Some of the 2011 proposed rules were implemented for a short time in April 2012, but they were struck down in May 2012 by the U.S. District Court for the District of Columbia because the Board lacked a quorum when it decided to adopt them. The district court's decision left open the issue of whether the Board could have issued the election rules with a Board quorum.2

The new proposed rules have been printed in the February 6, 2014 edition of the Federal Register. The Board will accept comments on the proposed rules until April 7, 2014 and will hold a public hearing on the proposed rules in Washington, D.C., during the week of April 7, 2014.

The Proposed Rules

Although the Board has used its rulemaking power only sparingly, Section 6 of the National Labor Relations Act authorizes the Board to make rules and regulations "necessary to carry out the provisions" of the Act. The Board believes that the Act itself, endorsed by the U.S. Supreme Court, requires the Board to adopt rules so that representation issues can be resolved "quickly and fairly." The proposed rules would likely result in elections being held within a few weeks of the filing of a representation petition, and they would substantially reduce an employer's opportunity to litigate whether employees are eligible to vote prior to an election. The proposed rules also would give unions access to employees' names, addresses, phone numbers, and email addresses earlier in the process, thus enhancing unions' chances of winning NLRB elections.

Specifically, the proposed election rules would do the following:

Require that all pre-election hearings take place seven days after the filing of a petition (absent special circumstances), and require that the election date be set at "the earliest date practicable." Require an employer to provide a list of the full names, home addresses, telephone numbers, email addresses, work locations, shifts, and job classifications of all employees who are eligible to...