The National Labor Relations Board (the “Board”) has been a hot topic on this blog in 2011, so it’s not surprising we are still talking about them as the year comes to a close.

Back in the summer, the Board proposed significant changes to the rules interpreting the National Labor Relations Act that would have sped up the union election procedure.  The sweeping changes that were proposed included, among others, the electronic filing of petitions, a requirement that hearings be scheduled seven days after notice of the hearing is served, and a requirement that email addresses and phone numbers be provided in voter lists.

As a sign of how rancorous things are at the Board, the Board’s lone Republican, Brian Hayes, actually threatened to resign if the other two members of the Board pressed forward with these sweeping changes – a partisan maneuver would have prevented the changes from occurring because the Board must have three members to act.  Perhaps in part because of that, or because of the thousands of groups and employers that spoke out against the proposed rules during the public comment and hearing period, the Board instead by a 2-1 vote on November 30 agreed to draft a final rule which would include changes not nearly as broad than those contained in the initial proposal, including the following:

  • Giving the hearing officer discretion to limit the issues that can be raised at the initial pre-election hearing;
  • Ceasing the practice of having pre-election appeals and consolidating all appeals on election issues into a single, post-election appeal;
  • Narrowing the circumstances to request special permission to appeal election issues to the Board; and,
  • Giving the Board discretion in the first instance to hear and decide any of those appeals to the election process.

Not surprisingly, the Democratic-controlled Board claims these rule changes will reduce unnecessary litigation, but in reality – and even though scaled down from what was originally proposed – they still will have the effect of speeding up the election process.  While the Board has yet to submit the changes to the final rulemaking stage, that would seem to be just a formality at this point as long as Hayes chooses not to resign and as long as they act before member Craig Becker’s term expires at year end.  Again, at that point, they won’t have the required 3 quorum members to take action.

Of course, the one bigger-picture potential hang-up in all of this is the Workforce Democracy and Fairness Act, a law passed by the full House of Representatives the same day the Board agreed to move towards final rulemaking with its changes.  This bill – which provides that union elections cannot be held in less than 35 days, mandates a two-week waiting period between the filing of a petition and the first hearing, and places restrictions on the employees who can vote in elections as well as the methods that a union can use to contact prospective members – would amend the National Labor Relations Act and render the Board’s soon-to-be-proposed final rule moot.

Now, the Senate has not acted on this legislation, and there’s no guarantee they will feel the same about it as the House, but the Act is noteworthy because this is the second time the House has gotten involved in matters having to do with the NLRB, after previously trying to get a bill going earlier this year which would have disbanded the Board altogether.  That says everything about how proactive the Board has been this year trying to implement what are generally regarded by the public and employers everywhere as unprecedented union-friendly reforms.

Stay tuned.  There’s still a few weeks left for things in 2011 to take a new turn.

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
» See more articles by Joseph U. Leonoro
» Read the full biography of Joseph U. Leonoro at Steptoe & Johnson

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