On December 13, 2017, the National Labor Relations Board (NLRB) published a request for information in the Federal Register seeking public comments on the agency’s existing union representation election rules. The NLRB last changed these rules in December 2014 to establish what many refer to as “quickie elections”. At that time, the NLRB had a Democrat majority during the administration of President Obama.
Now with a 3-2 Republican majority for the first time since 2007, the NLRB’s request for information foreshadows changes that would likely lengthen the time between filing of a representation petition and an election. Other procedural elements could also change.
Persistent Political Divide
Both Democrats on the Board objected to issuing the request for information.
Member Mark Pearce, who was the NLRB Chairman when it adopted the current rules, pejoratively referred to the request for information as a “Notice and Quest for Alternative Facts.”
Member Lauren McFerran added, “The RFI is premature, poorly crafted, and unlikely to solicit meaningful feedback.”
The Republican majority responded that: “It is surprising that the Board lacks unanimity about merely posing three questions about the 2014 Election Rule, when none of the questions suggests a single change in the Board’s representation-election procedures.”
What the Board Is Reviewing
The NLRB’s request for information indicates that the Board’s specific focus is on the December 2014 amendments to the union election rules. It states that the Board is evaluating whether the rules should be:
- Retained without change?
- Retained with modifications? or
- Rescinded, possibly while making changes to the prior election rules that were in place before?
Information Sought
The Board’s request specifically invites information relating to these questions:
- Should the 2014 Election Rule be retained without change?
- Should the 2014 Election Rule be retained with modification? If so, what should be modified?
- Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Election Regulations? If the Board should make changes to the prior Election Regulations, what should be changed?
Timeline
NLRB Chairman Philip Miscimarra’s term expires on December 16, 2017. Miscimarra was one of two dissenting Board members when the NLRB adopted the current election rules. He has announced that he will not seek or accept another term.
President Trump has not formally nominated anyone to fill the vacancy. Nor has the White House indicated who will become Chair upon Miscimarra’s departure. However, attorney Peter Ring is believed to be Trump’s pick to join the Board, subject to background checks.
By issuing this request for information just before Miscimarra’s departure, the Republican Board Members were able to start this process before losing the deciding vote.
Interested parties have until February 12, 2018, to respond to the request for information. By or soon after that time, the Senate may have confirmed Miscimarra’s replacement. That would then restore a Republican majority, likely paving the way for changes to the election rules.
Early Predictions on New Election Rules
It’s highly unlikely that the Board would have issued this request for information, over two vehement dissents, if it did not intend to make changes to the rules.
There are no obvious roadblocks to the Senate confirming a new Republican Member to fill Chairman Miscimarra’s seat in early 2018. Whether that is Peter Ring or someone else, they will likely reach accord with incumbent Republican Members Marvin Kaplan and William Emanuel on this issue.
Expect Democrats Pearce and McFarren to strenuously object to any changes. They have already articulated their grounds for doing in their 14 pages of dissent to the request for information itself.
Once the NLRB returns to full strength with a 3-2 Republican majority, it must still issue a proposed rule and allow further public comment. Nonetheless, it would not be surprising if new election rules are in effect before the end of 2018.
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