Deja Vu All Over Again: National Labor Relations Board Announces Proposed Rule-Making to Expedite Union Representation Elections
No shock to anyone, the National Labor Relations Board today announced that tomorrow it will publish anew a Notice of Proposed Rulemaking (NPRM) to drastically shorten the timeframe for the conduct of union representation elections. According to the Board, the proposed amendments are identical to the changes first proposed in June of 2011. Indeed, the NPRM appearing in tomorrow’s Federal Register looks largely indistinguishable from the Notice issued previously. Here’s how we described the proposed rules back in 2011:
Under current Board policy, the NLRB strives to hold representation elections within 42 days after the petition is filed. However, the Board's proposed amendments will shorten that period by days, if not weeks, by deferring most voting/bargaining unit issues until after the election and eliminating the parties' ability to request review of a Regional Director's decision prior to the election.
Specifically, the proposed rules will require the Regional Director to schedule the pre-election hearing to begin within seven days after a hearing notice is served. By the start of the hearing, the employer must state its position on election-related issues that it intends to raise at the hearing, including the Board's jurisdiction; the appropriateness of the bargaining unit sought by the union, and the type, date, and location of the election. The union will then respond to the positions taken by the employer. After hearing the parties' positions, the hearing officer will identify their disagreements and accept evidence only on genuine issues of material fact affecting those issues. However, and most importantly, unless the issues affect 20 percent or more of the unit, the litigation of those disputes will be deferred until after the election. Moreover, even if the unit issues are litigated prior to the election, the parties cannot request review from the Board prior to the election.
Once the Regional Director issues his or her direction of election, the employer will have two days, as compared to seven days now, to provide a final list of eligible voters to the union (the Excelsior list). Current rules and regulations only require the employer to provide names and addresses, but the new rules will require the employer to list phone numbers and email addresses on the Excelsior list when available.
The proposed rules also seek to take advantage of modern communication technologies. In addition to providing email addresses on the voter eligibility list, the new rules will allow petitioners to file election petitions electronically and for the NLRB to provide notices directly to employees through email when addresses are available.
Not all of the proposals were advanced to the final rule last time, with some of the less controversial measures – like e-filing – deferred for some reason. After receiving over 65,000 submitted comments on the proposal, and holding two days of hearing to obtain further public input, on November 30, 2011, the Board announced approval of a Final Rule, which was published on December 22, 2011. The Acting General Counsel issued operational directions to all Regional Offices and conducted training in the new procedures – but just two weeks after their April 30, 2012 effective date, they were invalidated by the District Court decision in Chamber of Commerce of the U.S. v. NLRB, Civil Action No. 11-2262. The Board suspended the rules while it appealed, but in February 2013, the Circuit Court of Appeals held the matter in abeyance pending resolution of the broader quorum issues in the Noel Canning case. Following the full confirmation of the current Board quorum late last year, the Board just weeks ago announced its withdrawal of the rule. Even then, today’s developments were anticipated.
Board Chairman Mark Gaston Pearce explained today:
The Board is unanimous in its support for effective representation case procedures. I am pleased that all Members share a commitment to constructive dialogue, and we all agree that important issues are involved in this proposed rulemaking.
That said, the Board split along party lines with the three Democrat members voting for re-issuance of these rules, and the two Republican members dissenting.
The Board invites comments on its proposed rulemaking in two ways. First, the Board will again hold a public hearing during the week of April 7, 2014. Second, while indicating it will consider all (65,000!) comments submitted in 2011, it is providing another opportunity to submit comments until April 14, 2014. Comments may be submitted electronically though Regulations.gov or by mail to the Board's Washington D.C. headquarters. Employers are encouraged to assess the potential impact of these proposed changes on their operations; and to consider submitting comment.