United States: The NLRB Is Dragging Its Feet On Reforming The Election Rule

Despite indications earlier this year that changes to the NLRB election rules would be coming quickly, and despite pressure from business groups to make such changes, the NLRB's efforts to make changes to those election rules appear to have stalled.

The NLRB's fall 2018 regulatory agenda, released Oct. 17, 2018, mentions plans to update its rules on union elections, which has been hotly anticipated by the business community. However, those plans are mentioned only in the NLRB's "long-term" agenda, much to the dismay of the business community.

By way of background, the NLRB issued a request for information on the union election issue in December 2017, asking whether the Board should scrap an Obama-era rule that allows workers to get to an election in a shorter period of time after filing a petition. Specifically, the Board invited comments on the following three questions:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election Rule Be rescinded?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 should be changed?

The business community anticipated that changes to the rule would be forthcoming slightly after the submission period for comments ended in February 2018, but the comment period was extended more than once, and as of the date of this article, the Board has taken no steps to enact changes.

During one of the extended periods for comment, Board General Counsel Peter Robb submitted comments to the NLRB in April 2018 on the election rule. He has suggested a 12-day waiting period (rather than the current eight-day period) between petitions and elections, and he also suggested that regional directors be able to delay election hearings by up to six days (rather than the current three days).

In addition to the General Counsel, numerous business groups, labor groups, and Democrats and Republicans from the Senate and the House have provided comments to the Board on how best to reform the election rule.

That the issue was included only on the long-term agenda indicates that it has been deprioritized, perhaps to allow the NLRB to focus on addressing the jointemployer issue instead. Given the agency's small size and the time required for issuing a new rule, the Board is unlikely to move on reforming election procedures until mid-2019.

Bloomberg reported recently that former NLRB chair Wilma Liebman agreed that including the union elections rule in the long-term category could mean agency leaders have "determined it isn't a priority." Notably, the request for comments was issued before President Trump appointed NLRB Chair John Ring, who has not signaled much interest in making changes to the election rules.

Although the current election procedures (c. 2015) have not had a significant impact on the rates of successful union organizing attempts, they remain controversial because they arguably do away with much of the due process involved in litigating election-related issues and lead to elections so quickly that employers barely have a chance to communicate with their employees about the election. In any case, it does not appear that changes will be coming anytime soon.

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.

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