The Corner

NLRB’s ‘Quickie Election’ Rule Struck Down

Yesterday, the D.C. District Court held invalid a newly promulgated NLRB rule that would have dramatically increased the success rate of unions in representation elections.

The rule, which, among other things, would have shortened the median timeframe between the filing of a union-representation petition and the conduct of a union election from 38–40 days to 14–21 days, went into effect on April 30. The shortened timeframe would have radically reduced the ability of employers to effectively respond to a union campaign, meaning the union-victory rate in representation elections would spike.

The court held that the board issued the rule without a properly constituted quorum of three members (the board, authorized to have five members, had three at the time of the rule’s issuance, but only two voted on the final rule).

This is a significant victory for employers, but it’s also a major win for employees who would have been compelled to make one of the most important decisions of their work lives with a paucity of information. The win, however, may be short-lived. The rule, sometimes referred to as EFCA-Lite because it accomplished some of the goals of the ill-fated Employee Free Choice Act, was a top agenda item for labor. It would be surprising if the NLRB, now at five members, didn’t either appeal or move to reissue the rule.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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