United States: It's Back – NLRB Revives Quickie Election Rule That May Soon Be Here to Stay

Last Updated: February 11 2014
Article by Steven M. Bernstein

The National Labor Relations Board has just announced that the agency would be reissuing its proposed "quickie election" amendments to rules governing representation case procedures.  The news came in the form of a press release, describing plans to publish a formal Notice of Proposed Rulemaking, incorporating changes that "are identical to the representation procedure changes first proposed in June of 2011."

Fisher & Phillips initially advised employers of the proposed rule nearly three years ago when it was first published back in June of 2011

( Unions In Decline? Labor Board To The Rescue!)

At that time, we referred to procedures that would expand on the amount and timing of employee information to be disclosed following an election agreement, and on any anticipated employee eligibility issues.  We also explained that the "streamlined" procedures could effectively cut the campaign period between representation petition and election from six weeks to less than three, and that the new rule could preclude resolution of supervisory status until after all the ballots are already in the box.

In early December of that year, we issued another Alert informing businesses that the Board had approved a resolution to move forward with a vote on the new rule over the dissent of then member Hayes, who warned that the "devil is in the details " (NLRB Moving Forward With New Election Rules). In an apparent rush to vote on the rule prior to the expiration of member Becker's recess appointment (and resulting loss of quorum), the Board voted on and subsequently published a final rule in late December of 2011, amending current representation procedures in a number of significant ways, effective April 30, 2012.  As we explained at that time:

A shortened election cycle places employers at serious disadvantage when it comes to educating employees on the detriments of union representation and training their supervisors to lawfully respond to union activity.  It also leaves employees with less time to consider all the facts for purposes of making an informed choice on whether they want to be represented by a union.  Worse yet, the new rule will essentially compel employees to cast their ballots before any lingering voter eligibility issues are resolved, effectively precluding them from understanding the full scope and ramifications of their decision.

(NLRB Publishes Final Rule Changing Representation Election Procedures)

While some may not remember, the quickie-election rule was actually the law of the land for the first two weeks of May, 2012.  We made clear at that time, that: "A 50% reduction in lead time between petition and election means that all things being equal, employees will be casting ballots that much closer to the confusion and negative emotion that presumably fueled the union card-signing activity to begin with. Consequently, all employers will have to be far more proactive in advance of any representation petition, and more nimble, efficient and direct with any communications issued thereafter." 

(NLRB Quickie Election Rule Now In Effect)

On May 14 of that year, however, the U.S. District Court for the District of Columbia struck down the rule on the basis that only two of the three Board members serving at that time actually participated in the vote to approve the final rule, thereby depriving it of the required procedural quorum. 

( Court Strikes Down NLRB "Quickie Election" Rule)

The Board has since allowed the appeals in that case to run their course while restoring the viability of its own quorum.  This past year, the NLRB returned to "full strength" in the form of five confirmed members for the first time in over a decade.  A reconstituted NLRB is expected to publish the proposed rule tomorrow, and the comments period is expected to close on April 7th (with reply comments due a week later).

Although the Board is characterizing the new rule as "identical" to the one first proposed over two years ago, it is worth noting that this time around, the Board is now suggesting that employee e-mail addresses will also have to be disclosed.  Consequently, while the full extent of the rule remains to be seen, the devil will presumably remain in the details. 

Equally important, the procedural impediments that doomed the rule the last time around will be long gone by the time the final rule is put up for vote.  As things stand now, the two Republican members may choose to vote against the rule or abstain, but in either case the three remaining Democratic members would constitute a lawful quorum should they vote for its passage as anticipated.

In the meantime, employers are encouraged to consider the practical implications of a quickie election rule on their own workplace, and to take proactive measures to develop a lawfully tailored response plan as soon as reasonably possible.  Fisher & Phillips attorneys stand ready to assist in that regard.  If you have any questions about the implications of the proposed rule or would otherwise like to discuss how best to prepare your organization, contact your Fisher & Phillips attorney at your earliest convenience.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Steven M. Bernstein
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.