The NLRB's Election Rule

Published December 15th, 2014 -  - 12.15.1413


The NLRB has issued a Final Rule making some relatively minor changes to its procedures in union election cases. These are limited, commonsense changes that will improve the current procedures for running union elections. The improvements will come primarily from reducing (some) delay and improving information flow to workers – improvements that are badly needed.

Under the new rule, the NLRB regional director responsible for an election will decide “which, if any, voter eligibility questions should be litigated before an election is held.” This marks a shift from prior practice under which voter eligibility questions had to be litigated prior to the election – even if they weren’t relevant to the question of whether an election should be held – a practice that the Board correctly determined often produced unnecessary litigation and delay. The new rules also make a sensible change to the voter list employers provide during elections. Whereas, previously, the list included only employee names and home addresses, lists will now include phone numbers and email addresses (where available). Since the purpose of voter lists is ensuring that employees are able to hear all sides of the debate over unionization – including the union side – it makes good sense to give unions information that will enable them actually to contact employees. Plus, many employees would probably far prefer to get a phone call or an email from a union organizer than a home visit.

A good summary of the Rule is available here. It is worth looking at what the Board has actually done because there are already signs of overheated reaction. As The Hill notes in its coverage, some business groups have “coined terms ‘ambush’ and ‘quickie’ elections to express their frustration with the rule.”   The Rule simply does not effect enough of a departure from the status quo to merit such reaction. I’m also afraid that some of the reporting on the Rule may contribute to this disproportionate response. For example, in a piece headlined NLRB boosts unions’ organizing leverage, PoliticoPro reporter Brian Mahoney called the Rule “the most significant policy change ever undertaken by the Obama administration to strengthen the power of labor unions.” If this is, in fact, the most significant thing the Obama administration has done to strengthen unions, that is simply a sad commentary on what the administration has done for unions. It is no indication that the Rule contains that much to get excited (or dejected) about.

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