Recent NLRB Actions Signal the Winds of Change Are Blowing: The NLRB Requests Information on Controversial "Quickie Election" Rules and Issues Its First Reversal of Obama-Era Policy

By Amy Moor Gaylord and Melissa D. Sobota - Franczek Radelet P.C.

December 13, 2017

Because the National Labor Relations Board (NLRB) is made up of members appointed by the President, Board law shifts as administrations change. Recently, the U.S. Senate confirmed two Republicans to the Board, resulting in a Republican majority on the Board for the first time in ten years, and a new NLRB General Counsel, management-side labor lawyer Peter Robb. Swift changes followed, and more are likely. 

On December 12, 2017, the NLRB announced that it will seek public input regarding its controversial 2014 “Quickie Election” rules, on which we have previously reported. The rules have been widely criticized by employers because they unfairly limit employer opportunities to respond to and educate employees about union organizing.

The Board will be seeking public comment 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 and if so, what should be modified? And

3. Should the 2014 Election Rule be rescinded? If so, should the rules revert back to the prior Election Rules or should changes be made?

The questions presented suggest that the NLRB is strongly considering a move away from the “Quickie Election” rules, although the Board majority has explained that it has made no decision yet about the future of the rules. The NLRB will accept responses to these questions from December 13, 2017 through February 12, 2018.

In another sign of change, on December 11, the newly-constituted Board issued its first reversal of an Obama-era decision. In UPMC Shadyside Hospital, the NLRB overruled United States Postal Service, a case that limited the circumstances under which unfair labor practice charges could be settled, therefore often making settlement more difficult. In UPMC, the NLRB restored an administrative law judge’s authority to accept a settlement, even if the General Counsel or a party object to it, if the proposed terms are “reasonable.”

The new NLRB will make more changes, the pace of which, however will depend on how quickly the Trump Administration can replace current Chairman Phil Miscimara, whose term expires December 16, 2017. We will continue to monitor and provide updates regarding NLRB decisions overturning Obama-board precedent as well as the Request for Information and subsequent NLRB action regarding the status of the 2014 “Quickie Election” rules.