National Labor Relations Board Chairman Mark Gaston Pearce today released the text of the Resolution to be considered at tomorrow’s vote by the Board. The Board will vote on whether to promulgate a select few portions of the rules proposed back in June to expedite union representation elections.
When the Board first announced tomorrow’s vote last week, we suspected that the unique political dynamic fostered by the Board’s current composition might keep the Board from approaching the more controversial elements of its extensive proposed rule. Subsequently, dramatic revelations about the recent inner workings of the Board — including a reported threat by lone Republican Member Brian Hayes to resign, effectively precluding official Board action — suggested that perhaps the Board majority was contemplating a more aggressive approach after all.
In the end, the Resolution released today leaves out a great deal of the changes proposed in June — including some of the more modest elements we suspected might be passed tomorrow, like electronic filing. Still, portions of this Resolution remain disconcerting.
The Resolution’s provisions, by design, would reduce the number of pre-election hearings and eliminate entirely the parties’ ability to obtain Board review of Regional Director determinations in advance of elections. While this may reduce delay in a few extreme cases, it may more universally deny the parties the certainty of their legal rights and responsibilities in connection with the election. One troubling possible example that comes immediately to mind is an employer not knowing whether an individual in the proposed unit is legally a "supervisor" under the NLRA until after the election. Anything that employer says to that individual during the pre-election period might generate employer liability if the individual is ultimately declared non-supervisory. On the other hand, anything that individual says to employees might generate employer liability if the individual is ultimately found to be a supervisor. The chilling effect on an employer’s rights to communicate with and direct its workforce during the pre-election period is obvious.
Moreover, some of the language toward the end of the Resolution is extremely vague and suggests additional specific changes may ultimately be passed — either as part of this Resolution or further proceedings — without spelling them out here.
The vote will follow a Board meeting — open to public observation (including live streaming at www.nlrb.gov), but not participation — convening tomorrow at 2:30 p.m. EST. Given the 2-1 make-up of the Board, it is hard to see how this Resolution would not pass if advanced to a formal "up or down" vote. In light of the flurry of letters and exchanges revealed last week, we suspect people will have their eyes on Member Hayes tomorrow morning in the hours leading up to the meeting.