Last week, as expected, the National Labor Relations Board announced that it is again proposing regulations to amend its representation case election procedures.
It is no surprise that the NLRB is moving on this. There was a question whether the board would simply rely on the record made in 2011, but apparently it is prepared to take additional comments on a fairly expedited basis.
A copy of the Notice of Proposed Rulemaking submitted to the Federal Register for publication can be viewed here. The proposed regulations appear identical to those the NLRB attempted to promulgate in 2011.
At that time, the NLRB received written comments and held a two-day public hearing at which dozens of interested parties testified.
In the end, the NLRB moved forward with only a portion of the regulations, which were immediately challenged in litigation. A federal district court in the District of Columbia overturned the promulgated regulations, holding that the NLRB had acted with only two members to promulgate them, which was not a sufficient quorum.
The NLRB appealed the district court decision to the District of Columbia Circuit. While the board's appeal was pending, that court issued its NLRB v. Noel Canning decision holding that certain recess appointments to the NLRB had been unlawful. The Noel Canning issue was quickly asserted as an additional ground for overturning the promulgated regulation,s and the NLRB’s appeal was placed in abeyance pending the outcome of the Supreme Court’s review of Noel Canning.
In the face of these major legal entanglements and the resulting delay, the NLRB voluntarily dismissed its appeal and withdrew the promulgated regulations.
This was a tactical move designed to clear the way for again proposing the regulations.
Although it is possible that the NLRB could have attempted to rely on the record created in 2011, it is again taking comments through April 7, 2014, with reply comments due by April 14, 2014. The NLRB also plans to hold another public hearing the week of April 7, 2014.
It's a little difficult to say now whether and what kind of legal challenges may be brought because at this point we don't know what the final regulations are going to look like, but there are certainly aspects of the proposed regulations that received a great deal of attention from employers during the last time. Stay tuned.
Ronald Meisburg is a Washington, D.C.-based lawyer and co-head of management-side law firm Proskauer’s Labor-Management Relations Group.
