The National Labor Relations Board announced today that it has adopted a final rule amending its election case procedures to shorten the time between the filing of a petition and the conduct of an election. The rule will be published in the Federal Register on Thursday, December 22, and is due to take effect on April 30, 2012.
The Board asserts that under the new rule:
…regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.
Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.
In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.
There have been various attempts by lawmakers to undo this rule, including John Kline’s (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) which passed by a vote of 235-188 late last month. That bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.
But it is not just the substance of the changes that opponents question. Days before the NLRB held a unique "public" session to vote upon the proposed rule changes, Member Brian Hayes sent a highly critical letter to the House Committee on Education and the Workforce. Member Hayes accused the Board majority of intentionally:
This afternoon, hours after the Board announcement of the final rule, Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, asserted that he would challenge the Board’s actions:
The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law. I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act.
The Congressional Review Act (CRA) allows Congress to review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation. According to Senator Enzi’s office, a resolution of disapproval introduced under the CRA cannot be filibustered and needs only a simple majority in the Senate to pass if acted upon during a 60-day window.