December 13, 2019
As we went to press, the NLRB posted for publication next week new union representation election rules, effective in 120 days, that will provide more reasonable deadlines for employer to file responses and for procedural aspects of the election to be resolved before the employees vote.
The new election rules come amidst a flurry of decisions on the eve of departure of the sole Democrat Member, Lauren McFerran, who dissented. The Board will revert to a 3-0 Republican majority on December 16. Historically, the Board has been more reluctant to issue significant decisions when there is not bipartisan representation. In at least one other significant action, the Board approved a settlement in a highly controversial McDonald’s case relieving the company of joint liability for its franchisees. The Board is expected to issue a final rule soon providing needed clarification to the joint employer issue.
Why it’s important: Notably, the Board did not repeal the HR Policy-opposed Obama Board election rules, as many had called for. Rather, it provided greater clarity and fairness to the process and thus will make it more difficult for a later Board to reinstate the initial rules. At this point, it is unclear whether the two vacancies on the Board will be filled next year, with another Board seat expiring in August.