NLRB Vote on Portions of Proposed Election Rule Imminent

ballot box3.JPGThe National Labor Relations Board has announced that on November 30, 2011, it will vote on a portion of its controversial proposed rule that would dramatically change representation election proceedings. Among other significant revisions to the long-standing election process, the rule would require that pre-election hearings be held within seven calendar days after a petition is filed; postpone voter eligibility determinations until after the election; require employers to complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union with a preliminary voter list before the pre-election hearing. The Board stated that at the November 30 meeting the three remaining members will decide whether to adopt “a small number” of these proposed changes, although which ones were not specified.

According to the Board, it has received more than 65,000 written comments on the proposed rule. The agency also conducted a 2-day hearing in July to gather public input. Taking these comments into consideration, and “in light of the possibility that the Board will lose a quorum at the end of the current congressional session,” Board Chairman Mark Pearce “will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.” Given the current makeup of the Board, approval of the Chairman’s proposal is a foregone conclusion, with member Brian Hayes (R) sure to object. Following the vote, the Board will “proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.”

Member Hayes has been vocal in his opposition to both the proposed rule and his colleagues’ attempt to finalize a rule before Democratic Member Craig Becker’s term expires next month. According to a letter (pdf) Hayes recently sent to Chairman of the House Committee on Education and Workforce Rep. John Kline (R-MN), this expedited approval process

would contravene long-standing Board tradition and the Board’s own internal operating rules. These rules and traditions have been established to protect the legitimacy of the Board. They cannot, in my view, simply be cast aside in pursuit of a singular policy agenda without doing irreparable harm to the Board’s legitimacy.

In addition, Hayes claims that Pearce and Becker “have made it unequivocally clear that they intend to publish a final rule before the expiration of Member Becker’s appointment without regard to Board tradition or rule,” and are already drafting a final rule with responses to comments filed without his input.

Moreover, Hayes asserted that his colleagues presented him with a take-it-or-leave-it “compromise proposal” on November 15, with a deadline of November 18 to accept. Hayes claims that such a proposal would have bound him:

to an unprecedented “emergency” revision of the ordinary internal rules for processing all pending cases from now until the end of Member Becker’s term. In effect, the “emergency” procedures would deprive me of any meaningful opportunity to consider the majority position, much less prepare a response, in any number of cases. This process, or, more accurately, lack of process, is so diametrically at odds with traditional decisional processes of the Board that it quite frankly defies description.

Hayes also stated that he suspects the final rule will resemble the proposed rule.

The Board vote will be conducted at the NLRB’s headquarters in Washington DC and will be open to the public, although members of the public will not be entitled to participate in the discussion. Requests to attend should be sent to with the following text in the subject line: REQUEST TO ATTEND PUBLIC MEETING REGARDING RIN 3142-AA08. The meeting will also be available via webcast from the Board’s website.

Photo credit: ericsphotography

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.