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Union Election Rule Changes Likely Far Down the Line (1)

Oct. 17, 2018, 3:39 PMUpdated: Oct. 17, 2018, 7:38 PM

The NLRB is apparently moving slower to change rules about how fast workers can hold union elections than it is on a proposal to rewrite the joint employer rule.

The National Labor Relations Board’s fall 2018 regulatory agenda, released Oct. 17, focuses only on the agency’s ongoing joint employer rulemaking (RIN:3142-AA13) to restrict the circumstances when multiple employers can face liability for the same workplace law violations. It mentions plans (RIN:3142-AA12) to update union election rules that the business community has been hoping the board would address since Republicans took control of the NLRB under the Trump administration only in its “long-term” agenda.

The NLRB issued a request for information on the union election issue in December 2017, asking whether the board should scrap an Obama-era rule that allows workers to get to an election in a shorter period of time after filing a petition. The board’s top prosecutor has since then suggested a 12-day waiting period between petitions and elections, but the agency hasn’t made any further moves.

Requests for information are a sort of preliminary move to gather views and opinions on a matter of concern to a federal agency. That the issue was included only on the long-term agenda indicates that the board is prioritizing the joint employer issue. The agency’s relatively small size and the time and effort required for issuing a single rule means the NLRB is unlikely to move on union elections at least until well into 2019.

Wilma Liebman, a former NLRB chair who’s been through the rulemaking process several times, agreed that including the union elections rule in the long-term category could mean agency leaders have “determined it isn’t a priority,” at least at the moment.

President Barack Obama’s labor board established the existing regulations in 2015. The NLRB signaled it was considering reversing the regulations after Republicans took control of the board but before President Donald Trump appointed current Chairman John Ring.

The business community has strongly criticized the existing policies, saying they allow unions to “ambush” employers without enough time to educate workers on the pros and cons of unionizing.

A Bloomberg Law analysis concluded the existing election procedures haven’t had a substantial impact on the rates of successful organizing attempts.

(Updated to add comments from Wilma Liebman.)

To contact the reporter on this story: Hassan A. Kanu in Washington at

To contact the editor responsible for this story: Chris Opfer at