Seyfarth Synopsis: The business community has another opportunity to convince the NLRB to rescind the expedited election rules that have been wreaking havoc on workplaces since 2014, after the agency extended the public comment period to March 19, 2018.
In the fast-paced, ever-changing world of NLRB precedent and procedures, April of 2015 seems like an eternity ago. Nearly three years ago now, the Board under President Obama implemented new expedited election rules which overhauled the Board's existing representation case procedures. The rules, which many employers came to call the "ambush" or "quickie" election rules, shortened the time for pre-election hearings; required rapid filing of a pre-hearing position statement and preliminary voter list (and deemed any issues not raised by the employer in the position statement waived); vested more discretion in regional directors, including giving the regional director the authority to determine whether parties could file post-hearing briefs; imposed new Excelsior list requirements including an earlier submission date; and required earlier elections with limited to no right to NLRB review of post-election disputes. Unsurprisingly, employers were alarmed by the new rules, which placed management on the defensive with only a short period of time to make the company's case to employees considering unionization.
With the change in Presidential Administrations, and accompanying changes in the makeup of the Board, NLRB-watchers have already seen more business-friendly policies begin to fall into place – and there is a chance that representation case procedures could be among them. In December of 2017, the Board published a notice in the Federal Register asking for public comment on three questions:
- Should the 2014 Election Rule be retained without change?
- Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
- Should the 2014 Election rule be rescinded?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 shoul be changed?
The comment period was originally set to expire on Monday, February 12, 2018, but in late January the Board issued a press release informing the public that "to aid in the consideration of the issues involving the 2014 Election Rule," the Board would extend the public comment period through Monday, March 19, 2018. The Board did not explain its reasoning in extending the public comment period, but it is possible that it concluded that more comments would help it to reach the most fully-informed decision about the fate of representation case procedures.
With this extension, the business community has another chance to make its views known to the Board about the fairest and most efficient way to conduct union representation elections. The public comment period is an opportunity to draw the Board's attention to the real impact that representation case procedures have on employers of all sizes and industries – before the Board turns its attention to other matters and the opportunity to regain sanity in union elections is relegated to the back-burner.
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