By Stephen R. McCutcheon, Jr., Attorney at Law
In 2011 the National Labor Relations Board adopted a controversial rule to fast-track union organizing elections. The rule shortened the time between the filing of a representation petition and an election. The shortened time span had potentially serious repercussions for the election process. It would have severely restricted any pre-election challenges and would have truncated the ability of employers to communicate with employees about unionization and prepare for the election.
The U.S. Chamber of Commerce and Coalition for a Democratic Workforce challenged whether the NLRB had the authority to adopt the rule as it was enacted by only two Board members. The U.S. District Court judge hearing the case agreed that the rule could not be adopted with the participation of only two NLRB members, but declined to reach other challenges to the rule. The NLRB had filed an appeal seeking to overturn the District Court’s decision and save the election rule, but on Monday December 10, 2013 the NLRB agreed to voluntarily dismiss the appeal, leaving in place the previously established rules governing the conduct of representation elections.
As President Obama has appointed a quorum of members to the NLRB, and the President’s appointees have sufficient votes to adopt a new rule, the withdrawal of the appeal suggests that the NLRB will reissue the rule, or perhaps a more restrictive version, in the near future.