NLRB Endorses Expedited Consideration of Pro-Union Representation Election Rule Changes
December 5, 2011
Todd D. Steenson- Chicago
At a November 30, 2011 public meeting, two members of the National Labor Relations Board stated their intention to promptly adopt a Final Rule changing the Board’s representation election procedures in ways that significantly favor unions. The two members will likely act before the recess appointment of Member Craig Becker ends this month and the Board is left without a quorum.
The proposed action would significantly decrease the time between a union’s filing of an election petition and the actual election. It would also sharply limit the ability of employers to communicate with their employees in response to union organizing as well as their participation in the election process, and would increase the union organizing risks employers face.
Background: The June 2011 Notice of Proposed Rulemaking and Current Board Membership
In June 2011, the then three Democratic (and pro-union) Board members issued a Notice of Proposed Rulemaking (Proposed Rule) that would substantially speed up the union election process and limit employer participation and ability to communicate with their employees. The Board proposed (1) holding the hearing regarding a union election petition within seven days after filing (the current average is 14 days), (2) sharply limiting the issues that could be litigated at such a hearing, (3) requiring employers to specify before the hearing the issues they would litigate or lose the right to do so, (4) eliminating employers’ right to appeal to the NLRB from the results of such a hearing before the election is held, (5) accelerating the time by which employers must provide unions with lists of employee names and mailing addresses, and (6) requiring employers to provide employee email addresses and phone numbers to union organizers. These proposed rule changes significantly favor unions in the organizing process.
During the 60-day comment period, more than 65,000 comments regarding the Proposed Rule were submitted to the Board. Most opposed the proposed changes.
The Board currently consists of only three members out of the five authorized by law. Chairman Mark Gaston Pearce and Member Craig Becker are Democrats and have issued numerous pro-union decisions. Member Brian Hayes is the lone Republican. He strongly dissented from the issuance of the Proposed Rule changes in June. Moreover, Mr. Becker was appointed as a recess appointee by President Obama after it became clear that the Senate would not approve his appointment to a regular term based on his strongly pro-union prior writings. As a recess appointee, his term will end when the current session of Congress ends this month. The expiration of Mr. Becker’s term will leave the Board without a three-member quorum and deprive it of the ability to act on the Proposed Rule changes.
The Board Majority’s More Limited Proposal and Recent Meeting
Recognizing that they are running out of time to adopt the proposed election rule changes before Member Becker’s term ends, Chairman Pearce proposed that the Board act on a subset of the changes. On November 18, 2011, he announced that the Board would hold a public meeting on November 30, 2011 to consider whether to act on a portion of the proposed rule changes in an expedited fashion.
At the November 30 meeting, the Board considered a resolution by Chairman Pearce to proceed with adopting six proposals contained in the Proposed Rule. These are as follows:
- Amending board regulations to state that the purpose of pre-election hearings described in Section 9(c) of the National Labor Relations Act is to determine whether a question concerning union representation exists that should be resolved in a secret ballot election. The proposal would give an NLRB hearing officer authority to limit the presentation of evidence in such a hearing to genuine issues of fact material to the existence of a question concerning representation.
- Providing for post-hearing briefs with the permission of a hearing officer, rather than as a matter of right.
- Amending Section 102.67 of the board’s rules “to eliminate parties’ right to seek Board review of regional director’s pre-election rulings while allowing parties to seek post-election review of all such rulings that have not been rendered moot by the election.”
- Eliminating language in NLRB’s current statement of procedure that prevents a regional director from scheduling balloting within 25 days of directing an election.
- Amending board rules to “clarify” that requests for special permission to appeal a regional director’s pre-election ruling will be granted only in extraordinary circumstances.
- Amending board rules to make NLRB review of postelection disputes discretionary.
At the meeting, Chairman Pearce and Member Becker voted in favor of issuing a Final Rule including these changes. Member Hayes strongly objected, however, stating that the majority was following a “fundamentally flawed process” and that the majority’s effort was a mistake that “will ultimately cause harm to the agency and the constituencies we serve.” He said the resolution was not a complete draft of proposed rule amendments, making it “difficult for me to engage in a meaningful dialogue.” Member Hayes further noted that the Board was violating its traditional practice of not making substantial changes in labor law without three affirmative votes for doing so. He warned that proceeding with only two votes would undermine the agency’s credibility and set the stage for similar actions in the future, further damaging the agency.
Significance of the Proposed Changes
The Board’s action on November 30 does not mean the changes are adopted: the Board still needs to adopt and communicate a Final Rule containing these changes. Nevertheless, we expect that the two-member majority will issue such a Final Rule before Member Becker’s term expires in December. These changes would substantially speed up Board elections and limit employer participation. The first proposal would mean that many decisions about who could vote, such as whether certain employees are supervisors excluded from NLRA protection, would not be made before the election. Deferral of these questions until after the election will leave both employers and employees unsure about who is in the voting unit and will leave employers vulnerable to claims that they improperly treated eligible voters as supervisors, or vice versa. The third and fourth proposals, eliminating an employer’s right to a pre-election appeal to the NLRB and limiting discretionary appeals, similarly mean that employers will more often be forced to go to election in a grouping that is not appropriate.
The second and fourth proposals will force quicker elections. Making post-hearing briefs discretionary eliminates the current seven-day period for filing such briefs in many cases. It also substantially hampers employers’ ability to show that a union’s chosen voting group is inappropriate. The union’s chosen voting group is presumed to be appropriate unless the employer proves to the contrary; eliminating the post-hearing brief will make it more difficult for employers to make this showing. The elimination of the 25-day period before a directed election is held means that the election could potentially be held as soon as seven days after the regional director’s decision after hearing; it is more likely, however, that it would limit the period from 25 days to 17.
The bottom line is that the adoption of even this limited set of changes would significantly reduce employers’ opportunities to communicate their position about unionization in response to a union organizing petition. We strongly recommend that employers take proactive steps to communicate with employees and limit the potential risks of union organizing.
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