By: Brian Morris
In 2014, the National Labor Relations Board (“NLRB” or “Board”) published the controversial “ambush election” rule, which was intended to decrease the time between the filing of a petition for representation and a union election. The rule, which became effective in April 2015, changed the scope of pre-election hearings and the timing and content of pre-election disclosures and required that the time between petition and election be less than thirty days. Employers and industry groups unsuccessfully challenged the rule in federal court. See, e.g., Associated Builders and Contractors of Texas v. NLRB, 826 F.3d 215 (5th Cir. 2016).
Last month, the Board, over the scathing dissent of two members, issued a request for information regarding whether the NLRB should retain without change, modify, or rescind the “ambush election” rule. In response to dissenting members, the Board emphasized that its request “merely poses three questions” and “does not suggest even a single specific change in current representation-election procedures.” However, the Board’s dissenting members characterized the request as part of a bad faith effort to rescind or substantially revise the rule.
Members Mark Pearce and Lauren McFerran each prepared dissents lambasting the majority’s request and extolling what they believe to be the benefits of the rule. Member Pearce characterized the Board’s request as a search for “alternative facts to justify rolling back the [NLRB’s] progress in the representation-case arena.” Member McFerran made a similar objection, stating that the request amounts to “little more than an open-ended ‘raise-your-hand-if-you-don't-like-the-Rule’ straw poll” that is unlikely to generate meaningful feedback.
Arguably more consequential is Member McFerran’s suggestion that the Board failed to articulate a reasoned basis for reconsidering the rule and, thus, any changes would run afoul of the Administrative Procedure Act. Perhaps laying the groundwork for future legal challenges, Member McFerran cautioned that “it should come as no surprise” in the future if a reviewing court “looks back skeptically” at what she characterized as a “partisan effort to roll back," the rule.
The deadline to respond to the Board’s request for information is March 19, 2018. We will keep a close watch on the Board’s rulemaking process and provide substantive updates.