In a move decried by the business community and even National Labor Relations Board Member Brian Hayes, the NLRB has issued a proposed rule (pdf) that would dramatically change pre- and post-representation election case procedures. It is predicted that the results of this proposed rulemaking will substantially expedite the election process and thereby deny workers the ability to fully exercise their right to make an informed and well-reasoned decision whether to join or not to join a labor union. In the words of Member Hayes in his strongly-worded dissent, (pdf) the proposed rulemaking “substantially limit[s] the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct.” Summing up his criticisms of the proposed changes, Hayes claims:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation.

The process outlined in this proposed rule appears basically to be an administrative end-run around the legislative process that defeated the Employee Free Choice Act (EFCA).

Some of the key amendments to the current NLRB election regulations, as discussed in an NLRB fact sheet, would accomplish the following:

• Allow election petitions, election notices, and voter lists to be transmitted electronically.
• Provide that the Regional Director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.)
• Give parties “a description of NLRB representation case procedures, with rights and obligations, as well as a ‘statement of position form’, which will help parties to identify the issues they may want to raise at the pre-election hearing.”
• Require parties to state their positions no later than the start of the hearing, before any other evidence is accepted.
• Permit the parties to choose not to raise voter eligibility issues at the pre-election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20% of the bargaining unit would be deferred until after the election. According to Hayes, this new provision “permitting up to 20 percent of individuals whose eligibility is contested to cast challenged ballots casts a cloud of uncertainty over the election process. Employees who do belong in the bargaining unit may be so mislead about the unit’s scope or character that they cannot make an informed choice, instead basing their vote on perceived common interests or differences with employee groups that ultimately do not belong in the unit.”
• Mandate that employers produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing. Employers would have to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.

Notably, according to Hayes, the rule would also:

• Eliminate pre-election evidentiary hearings, as much as is statutorily permissible;
• Eliminate pre-election requests for review and defers decision “on virtually all issues heretofore decided at the pre-election stage in the small percentage of contested cases”;
• Impose pleading requirements “and minimal response times on election parties, most notably on employers, who risk forfeiture of the right to contest issues if they fail timely to comply with these requirements”; and
• Eliminate any automatic right to post-election Board review of contested issues.

As discussed by Hayes in his dissent, “post-election issues have heretofore been limited to election objections and challenges. Now, with the shift of virtually all pre-election issues to the post-election phase, the majority substantially increases the potential costs to all employers who have the temerity to attempt to conduct normal business operations while contesting legitimate election issues. Of course, there is no comparable burden on unions.” Hayes further contends:

by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought-after “quickie election” option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.

In addition to his substantive criticism of the proposal, Hayes argues that the need for such a rule is lacking. Hayes claims Board colleagues put forth “proposals on their own initiative, not in response to any petition for rulemaking or in response to any specific problems defined by prior litigation. The need for their proposed electoral reform, which directly affects every employer and employee in every industry subject to Board jurisdiction, is far from obvious.”

Comments on this proposed rule must be identified by the code: 3142-AA08 and received within 60 days of its publication in the Federal Register, which is scheduled for June 22, 2011. Comments may be submitted electronically through the federal eRulemaking portal, or sent via mail or hand-delivered to: Lester A. Heltzer, Executive Secretary, National Labor Relations Board, 1099 14th Street, NW, Washington, DC 20570.

For more information on this proposed rule, see Littler’s ASAP: NLRB Proposed Rules Would Make it Easier for Unions to Organize by Alan I. Model.

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