In 2011, the National Labor Relations Board released proposed regulations that would significantly change union representation elections in ways that favor the labor organizers. Subsequent to this issuance, a federal court invalidated the rules on procedural grounds, concluding that the NLRB did not have a sufficient quorum to approve the rulemaking. Last week, in a 3-2 vote, the full NLRB reissued the identical proposed rule.
Employers strongly object to two major provisions of the new rules. First, they would significantly decrease the amount of time between the union’s filing of a petition and the vote by the proposed bargaining unit. Employers believe that this will encourage “ambush” elections and prevent them from having the opportunity to fully present their arguments against unionization to employees. Second, the rules would streamline and reduce the grounds upon which employers could object to the unionization petition. Most appeals could only be heard after the vote. Employers believe that the NLRB would be reluctant to overturn a pro-union vote to uphold the employer’s objections to the configuration of the bargaining unit.
With the procedural flaws in the rulemaking apparently overcome, employer advocacy groups will renew substantive legal objections to the rules. These include claims that the rules exceed NLRB’s legal authority, and that certain provisions violate employers’ constitutional rights. Before these legal issues can be raised, however, the NLRB will accept comments on the proposed rules through April 14, with a subsequent vote to finalize the proposed regulations.