Beginning of the End for the NLRB’s Election Rule? Trump Board Issues Request for Information

By Nelson Cary and Lauren Sanders

On Wednesday, the NLRB announced that it would ask for public input on the 2014 Election Rule, sometimes known as the “ambush” or “quickie” election rule.  The 2014 Election Rule speeds up the representation election procedure, allowing union votes to occur in much less time than was previously the case.  For example, as we previously reported, under the rule, “ordinary” disputes about eligibility to vote or inclusion in the bargaining union do not have to be resolved before the election.

The NLRB is now seeking the public’s responses to the following 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 Should the 2014 Election Rule be rescinded?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 Request for Information was approved by Chairman Miscimarra (R), and Board Members Kaplan (R) and  Emanuel (R). Board Members Pearce (D) and McFerran (D) dissented.  In responding to the dissent, the majority was careful to note that the request for information does not signal that the rule will be repealed, or even modified.  Rather, the majority made clear that it felt the NLRB should “periodically conduct an objective and critical review of the effectiveness and appropriateness of our rules.”

The Election Rule has endured many challenges to this point.  After the NLRB first published the Election Rule, Congress voted in favor of a joint resolution disapproving the rule and declaring that it should not take effect.  President Obama vetoed this resolution.  Multiple parties then challenged its validity in the federal courts, which determined that the rule is in fact valid.

With this development, we return full circle to the administrative agency where it all began.  The Election Rule published over a strong dissent from then-Member Miscimarra and former Member Johnson.  Those wishing to comment must submit their comments to the NLRB no later than February 12, 2018.

We will continue to monitor developments to see whether the information request yields proposed changes in the election rule.