The National Labor Relations Board (NLRB) this week voted 3-2 to resurrect a proposal to implement new rules aimed at speeding up the union election process, while limiting employers’ ability to participate in the process. The labor board’s proposed amendments are identical to ones that the politically divided board was on the verge of enacting in late 2011. That previous attempt to change the rules was invalidated by a federal court that found problems with the approval process. The court reasoned that the rule was invalid because it was approved without a quorum, as only two of the then three current members of the NLRB had cast a vote.
The NLRB said the proposed changes would make it easier for workers to vote to create a union. Currently, a union files an election petition with the NLRB and concluded with a secret ballot election. Under the proposed rules, labor organizations would be able to distribute information about the elections electronically, for example. Also, litigation over some issues related to voter eligibility would be delayed until after workers vote on whether to form a union. It is predicted that the proposed changes could shorten the time between the filing of a petition with the NLRB and an election from the 2013 medium of 38 days to 25 days.
If the rules are finally approved and promulgated, they may take effect as soon as this year. The latest version of the proposed rule change was approved by NLRB’s three Democratic members, while the two Republican appointees dissented. The proposed rule change has a 60-day public comment period and will be subject to a public hearing in early April. After that, the proposed changes could be revised before going into effect. The new rules will likely face legal challenges. The last time that the NLRB proposed changes election procedures, the U.S. Chamber of Commerce challenged the proposed changes.
The law firm of Hogan Lovells has prepared a detailed analysis of the proposed so-called “ambush election” rules, which is available here.
