November 30, 2011
NLRB Votes To Change Representation
Submitted by Shaun Haley, Of Counsel with the Las Vegas office of Ogletree Deakins. The article was drafted by the attorneys of Ogletree Deakins, a national labor and employment law firm that represents management. This information should not be relied upon as legal advice.
Today, the National Labor Relations Board (NLRB) voted 2-1 in favor of changing representation election proceedings by adopting a number of the changes included in its proposed rule, which was published in the June 22nd issue of the Federal Register. The adopted rule revises the process for union representation elections, shortening the time from the filing of the election petition until the actual vote is held and thereby making it easier for unions to win elections and more difficult for employers to communicate with employees prior to the vote.
These changes follow submissions to the Board of over 65,000 written comments on the proposed rule and public input gathered at a two-day hearing in July. The Board currently has three members, Chairman Mark Gaston Pearce (D) and Members Brian E. Hayes (R) and Craig Becker (D), who is serving on a recess appointment that will end with the adjournment of the Senate in December. According to an explanation posted on the agency's website, the Board was spurred to vote on the proposed rule now "in light of the possibility that the Board will lose a quorum at the end of the current congressional session."
The vote was on a "scaled back" final rule, not the entire rule published in the Federal Register, which "will remain under consideration by the Board for possible future action." Chairman Pearce and Member Becker voted in favor of the new rule, Member Hayes voted against its adoption.
What's "In" For Now
As a result of today's vote, the NLRB resolved to prepare a final rule to be published in the Federal Register that makes the following key changes to the current representation election procedures:
Elimination of current procedures providing for pre-election appeals to the Board from the actions of the Regional Director on the election petition and providing instead only for a single, discretionary appeal of pre-election and post-election issues after the votes are cast. An appeal to the Board prior to the election is expressly limited to issues that would otherwise escape Board review entirely if not raised at that time. Elimination of current requirements that a vote cannot be held sooner than 25 days after the Board's Regional Director issues a Direction of Election. As a practical matter, this means that elections will be held sooner after the Direction of Election than was previously the case, although the precise length of time may vary in each case.
Clarification that a pre-election hearing is to determine only whether a question concerning representation exists and that the hearing officer has authority to limit evidence taken at the hearing that does not have relevance to a genuine issue of fact material to that issue. This means that many issues of individual voter eligibility as opposed to voting unit composition may be deferred to the post-election procedures rather than litigated prior to the vote. The right of parties to file a post-hearing brief to the Regional Director, previously guaranteed under the Board's rules, is now made discretionary with the hearing officer.
What's "Out" For Now
Some of the most onerous and unfair provisions of the original proposed rule, which produced a hail of criticism from the business community in the comments filed with the Board this past summer are tabled for now. These include:
The requirement that a hearing be held within seven days of the filing of a union's representation petition. Allowing the union's petition to be filed electronically rather than the current practice requiring filing by hand or regular mail. The requirement that the employer prepare and file a comprehensive "statement of position" on the union's election petition no later than the date of the hearing, together with the requirement that any issues omitted by the employer from its statement are waived by the employer and may not be raised later. The requirement that unions be given employees' email addresses and telephone numbers prior to the election. Currently, the union receives a list of eligible voters from the employer prior to the election containing the employees' full name and residence address but not their email address and telephone number. The requirement that the voter eligibility list be given to the union within two work days of the Direction of Election instead of the current rule allowing seven work days.
Member Hayes's Position
Member Hayes, in voting against the rule, charged that the Board's Democratic majority improperly rushed to issue a final rule before Member Becker's recess appointment expires and without adequate consideration or discussion of the over 65,000 written comments that the Board had received in opposition to the rule. Member Hayes repeated his view expressed in July that the rule was an unnecessary change to the Board's current procedures and allowed too little time between the filing of an election petition and the holding of the vote to permit adequate discussion of the issues of unionization between management and the affected employees.
Member Hayes also complained that by deferring voter eligibility issues to post-election procedures rather than resolving them in the pre-election hearing the Board was introducing too much uncertainty into the election process regarding who could vote and who might be considered ineligible, including persons whose supervisory status was unclear. Member Hayes also expressed the view that the Board should not vote to change existing procedures without an affirmative vote of at least three Board members and since he was voting against the rule the result was that the statutorily created five-member Board was changing key procedures affecting its operations with just two votes in favor of passage.
What Does This Mean?
Even though the Board now proposes a rule that is less onerous to employers than its original rule, which would have reduced the time from filing of the election petition to the holding of the vote to as little as 10-21 days, the new rule, by eliminating pre-election appeals of Regional Director rulings, still substantially shortens the period from filing of the petition to the date of election from the current Board target of 42 days. Elections will be held quicker than before, the precise period being determined by the circumstances in each case.
By not adopting for the moment the absolute requirement that pre-election hearings be held within seven days of the petition and that the employer file a statement of position on or before that date in which it must raise all issues or waive them, the Board has avoided some of the most scathing criticism leveled by the business community at the original rule. However, this respite may be only temporary. There is no guarantee that the Board will not adopt these portions of its proposed rule in the months to come, depending on the number and political composition of Board members at that time.
Following today's vote, the NLRB will proceed to draft a final rule limited to those proposals, to be issued prior to the expiration of Member Becker's recess appointment and will "defer the remainder of the proposed rule for further consideration." This is, in effect, a "strategic retreat" from the most onerous provisions of the original proposal, but is by no means a "final surrender." In fact, whenever the Board restores its quorum, the majority likely will reinstitute its earlier provisions.
In the meantime, business groups will continue to attempt to block enactment of the rule by, among other strategies, supporting passage of the Workforce Democracy and Fairness Act (H.R. 3094). That legislation is designed to negate the original provisions of the NLRB's proposed R-Case rule and to overturn the "mini union" bargaining unit rules from the Board's Specialty Healthcare decision. The business community also may seek for Congress to deny funding to enforce both rules and to challenge the R-Case rules in court.