On December 21, the National Labor Relations Board (NLRB) announced the adoption of a final rule that is expected to allow quicker union representation elections. The rule was published in the Federal Register on December 22.
The rule, which is to take effect on April 30, 2012, is a scaled down version of amendments proposed last summer. Board proponents of the change say it’s aimed at modernizing the election process and reducing unnecessary litigation. Critics of the rule claim it will deprive employers of the time they need to respond to union-organizing efforts.
The adoption of the new rule comes amid an effort to pass legislation to rein in the NLRB. The Workforce Democracy and Fairness Act (H.R. 3094) passed the House in November in a 235-188 vote.
Representative John Kline, a Minnesota Republican, is a sponsor of the bill, and he issued a statement on December 21 calling on the Senate to immediately schedule a vote on the act. His statement also condemned the Board’s approval of the rule.
“Ignoring the will of Congress and objections raised by countless organizations representing workers and employers, the NLRB has chosen to deliver a final ambush election rule to its Big Labor allies – just in time for the holidays,” Kline said. “Although the scheme has been modified to remove some egregious provisions, it will still deny access to a fair election process, limit employer free speech, and restrict worker free choice.”
The NLRB statement on the adoption of the final rule says it’s primarily focused on procedures the Board follows “in the minority of cases in which parties can’t agree on issues such as whether the employees covered by the election petition are an appropriate voting group.”
The NLRB says that under the new rule, regional hearings will be limited to “issues relevant to the question of whether an election should be conducted.” The hearing officer will have the authority to limit testimony and decide whether to accept post-hearing briefs.
Also, appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. The Board statement says the new rule leaves final decisions “in the hands of career civil servants with long experience supervising elections.”
Controversy over the rule change has divided the three sitting members of the Board and even prompted the only Republican member to consider resigning as a way to deprive the panel of the quorum it needs to act. The Board, which is supposed to have five members, has been down to three since August, and the term of one of the three sitting members, Democrat Craig Becker, ends at the end of the year. Nominations for the open seats have been held up in the Senate.
The Democratic Board members, Chairman Mark Gaston Pearce and Becker, favored the rule change, while Republican member Brian Hayes opposed it. Hayes said in the November 30 meeting on the rule that he had been urged to resign his seat so that the two-member Board would be unable to adopt the rule change.
He said he considered resigning but decided against it because he saw resignation as causing “the very same harm and collateral damage to the reputation of this agency and to the interest of its constituents as would the issuance of a controversial rule without three affirmative votes.”