The National Labor Relations Board announced today that it has scheduled a vote on whether to adopt “a small number” of the changes to its election procedures that the Board proposed back in June.  According to the Board, “[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.”  The proposed changes include:

  • shortening the period between the filing of a petition and the conduct of a representation period by days, if not weeks;
  • deferring most voting/bargaining unit issues until after the election;
  • eliminating the parties’ ability to request review of a Regional Director’s decision prior to the election;
  • expediting the production of a list of employees and their contact information to the union, including phone numbers and email addresses; and
  • allowing for the filing of election petitions and posting of notices electronically.

The Board received more than 65,000 written comments on the proposal and heard testimony from 66 speakers at a two-day hearing in July.  Senator Jim DeMint (R-SC) soon thereafter introduced “The Fair Representation in Elections Act of 2011” (S. 1425), which would guarantee that no representation election is held within forty (40) days after the filing of a petition, and until the Regional Director has resolved all jurisdictional, unit determination and eligibility issues.  Last month, the House Committee on Education and the Workforce voted to send Committee Chairman John Kline’s (R-MN) similar bill, the “Workforce Democracy and Fairness Act” (H.R. 3094) bill to the floor.

In today’s announcement, the Board indicates:

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.

The Chairman and the Board’s other two Members will discuss and vote on a resolution to accept the Chairman’s proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.

One might expect the Board to limit its consideration to the less drastic and controversial elements of its proposals, on which there appears to be unanimous consensus among the Board’s three Members.  A dissenting Board Member could very likely prevent anything from being passed by simply stepping down prior to a vote, thereby denying the Board a quorum under the holding of the Supreme Court’s decision in New Process Steel L.P. v. National Labor Relations Board, 08-1457.