By: Ronald J. Kramer, Esq & Annette E. Kim
The kids may be waiting for Santa, and everyone is waiting for Noel Canning, but the wait is over, more or less, for indications as when the National Labor Relations Board (NLRB) and the Department of Labor (DOL) may move on proposed “ambush election” and persuader rules, respectively. The announcements the same day via the issuance of regulatory agendas is fitting, because proposed rules on both subjects first were introduced within 24 hours of each other back in June 2011.
First, the NLRB election rules. As addressed earlier here, the NLRB first proposed expedited election rules in June 2011. Among the NLRB’s proposals: allowing electronic filing of petitions and other documents; limiting the scope of pre-election hearings by granting broad discretion to the hearing officer; expediting the election process so that an election would take place 10 to 21 days after filing the petition, as opposed to the traditional 42 to 45 day timeline; and making the review of any post-elections decisions discretionary rather than mandatory.
The NLRB adopted many but not all of the proposed rules in December 2011, only to have the United States District Court for the District of Columbia invalidate them because they were not adopted by a proper quorum — only two of the three sitting Board members participated in the vote. See here and here. That decision was appealed to the D.C. Circuit, where it has been on hold pending the U.S. Supreme Court’s decision in Noel Canning regarding the propriety of recess appointments.
With a fully confirmed five-member board, the NLRB seemed poised to revisit the ambush election rules. There was talk of the new Board circumventing the litigation reissuing the rules — whether in whole or in part — to negate the quorum issue. A reissuance of the rules was not listed, however, in the NLRB’s semiannual regulatory agenda issued on November 26th. The Board did report, as a “long term” action item, that it was “continuing to deliberate on the rest of the proposed amendments.” Thus it appears the ambush election rules will remain on hold pending the outcome of Noel Canning and the actual election rule litigation — at least for now — but that the remaining proposed election rules are still in play somewhere down the road.
Second, the DOL “persuader” rules. In June 2011 the DOL proposed new standards for enforcing the Labor-Management Reporting and Disclosure Act (LMRDA). Reversing decades of consistent interpretation, the new reporting rules would greatly expand the definition of a “persuader” by narrowing the advice exemption such that employers and their consultants (including attorneys) would have to file reports with the DOL detailing payments for just about all union-related advice and services given to employers that was not strictly legal. Critics argued that the expanded filing requirements under the proposed rule would have a chilling effect on an employer’s willingness to obtain legal counsel or engage in its own lawful free speech to employees about union issues.
The DOL received numerous comments on the proposed rules during an extended comment period that ended September 21, 2011. Since then, the employer community has been waiting — and waiting — for the final rule to issue. Previous DOL regulatory agendas reported the final rules would be issued in April 2013, and then in November after the new Secretary of Labor was appointed. Now, according to the DOL’s latest semiannual regulatory agenda issued on November 26th, the final rule will be issued in March.
Will the NLRB win its appeal over the ambush election rules? Will it side-step the litigation by re-issuing the rules and/or move forward on its long term plan to get to the rest of the proposed election rules it did not issue? Will the DOL ever issue the persuader rules? What will they be? Will they survive anticipated legal challenges? Stay tuned.