News & Announcements

NLRB Extends Comment Deadline 30 Days on ‘Quickie Election’ Rule RFI

Posted Tuesday, February 6, 2018 6:30 am

The National Labor Relations Board is extending until March 19, 2018, the comment period on its request for information (RFI) on its representation election regulations, with a specific focus on amendments to the Board’s representation case procedures adopted by the final rule published on December 15, 2014—the so-called "quickie election" rules. The notice extending the earlier February 12, 2018, comment deadline another 30 days is slated for publication in the Federal Register January 29, 2018.

The 2014 rulemaking set off waves of sharp criticism and, at the time the new information request was approved (with two dissenters), the Board had temporarily changed to a Republican-majority, pro-business mix. The move likely means the election rules will be reworked.

RFI justification. Citing its justification (at least in part) for the new information request, the majority of the five-member Board that requested it noted that the final rule has been in effect for more than two years, and at the time of the request, the Board included only two members who had participated in the 2014 rulemaking: Member Pearce, who joined the majority vote to adopt the final rule, and Chairman Miscimarra (now departed), who joined former Member Johnson in dissent. The majority also cited congressional hearings, proposed legislation, and numerous cases litigated before the Board that it said have presented "significant issues concerning application of the Election Rule."

Just an excuse to change the rule? There was sharp division among Board Members as to whether the RFI should be issued. Members Mark Gaston Pearce and Lauren McFerran forcefully dissented from the regulatory action. Pearce said the RFI should be more aptly titled, "Notice and Quest for Alternative Facts." McFerran similarly saw the RFI as "a transparent effort to manufacture a justification for reopening the Rule."

Three questions for comment. The Board’s RFI seeks information from interested parties 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 Should the 2014 Election Rule be rescinded?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?

Details for submitting responses are outlined in the notice announcing the 30-day extension.

Source: Wolters Kluwer (Written by Pamela Wolf, J.D.)

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