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NLRB Reissues Expedited Union Election Rules

In 2011, business advocates across the nation balked at the National Labor Relations Board’s (NLRB’s) attempt to modernize labor union election procedures and expedite elections. Opponents argued that these new rules — dubbed “ambush election” rules by opponents — would deprive management of a fair opportunity to make a case against unionization to their workforces. While these rules were ultimately finalized, they were successfully challenged on the technical grounds that the NLRB lacked a quorum to conduct business at the time it promulgated them. While appeals followed, the case came to a standstill as the nation awaited the Supreme Court’s decision in Noel Canning, the outcome of which would have ultimately decided this appeal as well.

However, the NLRB now has a quorum and has come to the realization that pursuing this appeal is unnecessary as it can simply reissue the rules. It did so in February of 2014. As in 2011, this notice of proposed rulemaking has generated a swift and loquacious response on both sides of the issue:

  • Labor advocates argue that the rules do little more than modernize and expedite elections. Changes such as allowing electronic filing of documents and requiring employers to provide personal information about eligible voters do not alter the outcome of elections but simply make them go more smoothly. Moreover, changes to the litigation and appeals process surrounding elections would prevent employers from using sham litigation solely to delay elections.
  • Management advocates argue that streamlining elections would deprive them of an opportunity to make a case to their workforces. They also argue that allowing elections to go forward while related litigation is pending deprives employers of the opportunity to challenge questionable union election practices.

The public comment period for this rulemaking is set to expire on April 7, 2014. Employers should consult their labor and employment attorneys to determine how these changes could affect their operations.

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