As reported earlier, the National Labor Relations Board tomorrow will officially publish a Notice of Proposed Rulemaking to drastically shorten the time for union representation elections. While legislators were unable to eliminate the time between petition and representation election entirely via the failed push for the Employee Free Choice Act, there have consistently been proponents of shortening this period, including current Chairman Wilma Liebman, Senator Tom Harkin (D-IA), former NLRB Chairman William Gould, and former Senator Arlen Specter (D-PA).
While official publication of the Notice is expected tomorrow, there are numerous related resources online at the Board’s website including a red-lined version of the proposed rule changes, a Fact Sheet and a "summary of the main changes" being contemplated to the representation process.
One of the most important duties of the National Labor Relations Board is conducting secret-ballot elections to determine whether employees want to be represented by a labor union. Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years. Under the law, as the Supreme Court has explained, the Board is responsible for the rules that govern representation cases.
Over the decades, the Board has revised its rules periodically, looking for ways to achieve a broadly-shared goal: making the representation process work as well as possible. One important result has been to reduce the typical time between the filing of an election petition (which triggers the Board’s procedures) and the actual election. But the current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices. It is worth asking, again, whether the Board can now do a better job, and can better serve the employees, employers, and unions that participate in the election process.
Member Brian Hayes has dissented from the Board’s 3-1 decision to propose these changes at this time. In no uncertain terms, Member Hayes sets forth his position thus:
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. For my part at least, I can and do dissent.
The Board will hold a public hearing on the proposal on July 18 (and possibly 19); and is soliciting written comment for at least a 60-day period. Employers should seriously consider participating in this process to the fullest extent possible.