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NLRB Abandons Certain “Quickie” Election Rules

January 3, 2020

The National Labor Relations Board (“NLRB” or “Board”) recently announced its final rule, effective April 16, 2020, which abandons key components of the 2014 “quickie” election procedures adopted during the Obama administration (previously reported here). While the Board explicitly noted that it was “not rescinding the 2014 amendments in their entirety,” the new rule revises important aspects of the current procedures in NLRB representation election cases.

The new rule includes, but is not limited to, the following significant changes:

The new procedures (which largely restore the pre-2014 NLRB election process) provide the employer with an improved opportunity to resolve unit scope and voter eligibility issues before workers vote for or against union representation. The Board ruled, contrary to the dissent of one Board Member, that these changes are justified because they will make the final election result “fundamentally fairer.”

Significance for Management

The new rule, which improves the electoral landscape for employers, will likely be challenged in court by one or more unions as violating the Administrative Procedure Act (“APA”). Member McFerran (appointed by President Obama, whose term on the Board expired on December 16, 2019) dissented, asserting what she perceived to be the “arbitrary and capricious” way the new rule was adopted. As this election-procedure rule is not subject to the more stringent “notice and public comment” requirements of the APA, an APA-based challenge to the rule is not likely to succeed. In the meantime, NLRB representation election cases will proceed according to the new rule while any challenge to the rule works its way through the courts.  

Please do not hesitate to contact any of our attorneys if you have any questions regarding these changes in NLRB procedure or any other matter.