NLRB Chairman Pearce Announces Content of Election Rule Proposal

As reported on this blog last week, the NLRB will meet tomorrow to consider a resolution on the rule it proposed in June 2011.  Today, Chairman Pearce (D) made public the resolution (pdf) that will be voted on at tomorrow’s meeting.  In doing so, the Chairman has disclosed what was left unanswered in the announcement of the meeting last week:  what will the final rulemaking contain?  According to the resolution, and the NLRB’s accompanying explanation, the resolution would commit the NLRB to moving forward on six changes to the NLRB’s rules:

• Limiting evidence produced at the initial hearing to only that necessary to determine whether a question concerning representation exists;
• Eliminating the automatic right to file briefs with the regional director after the initial hearing;
• Eliminating a party’s right to appeal the regional director’s determinations to the NLRB prior to the election, and providing for only a single appeal, after the election, and then only over issues that the election hasn’t rendered moot;
• Eliminating language in the NLRB’s regulations providing that elections are typically not scheduled for a date sooner than 25 days after the election petition has been filed;
• Clarifying the standard for seeking special permission to appeal to the NLRB from a regional director’s decision; and
• Making NLRB review of the regional director’s decisions discretionary, rather than mandatory.

These six changes are in line with the NLRB majority’s desire to "streamline" the NLRB’s election petition process. The result is to speed up the time between the filing of an election petition and the holding of a secret ballot election. This has caused many to refer to the rulemaking as the NLRB’s "quickie election" rule.

As the effort to finalize these regulations moved forward, Member Hayes (R) wrote a letter to Congressman John Kline, Chairman of the U.S. House Committee on Education and the Workforce, in response to a request by Kline for information from the NLRB. Hayes was critical of the rulemaking process in this letter. When Hayes’ letter became public, the Chairman responded with a scathing letter to Hayes, rebutting the statements contained in Hayes’ letter. A good summary of these unusual letters can be found here.

The originally proposed rule contained a number of additional changes that the NLRB has apparently decided it will not pursue at this time.  For example, the NLRB’s resolution does not address the original proposal to:

• Require a position statement before the initial hearing summarizing all of the parties’ issues;
• Require that the initial hearing be held within seven days of the date the petition is filed;
• Require that the eligible voter list be produced within two days, rather than the seven currently required; and
• Require that the eligible voter list contain employee e-mails and phone numbers, in addition to addresses.

It appears that the NLRB will, however, continue to deliberate over the other portions of the proposed rule.  This leaves open the possibility that the other changes proposed in June could yet find their way into the NLRB’s regulations. 

For the labor professional, the NLRB’s resolution reveals the agency’s desire to get at least some final rule published prior to the end of the year.  Indeed, the NLRB’s explanation specifically references the "possibility that the Board will lose a quorum at the end of the current congressional session. . . ."  By slimming down the proposal, the NLRB can move the proposal to a final rule more quickly while still leaving on the table the other changes proposed. 

There is a wild card still in play that is important to note.  The Hayes/Pearce letters reveal that Hayes has threatened to resign.  If he did so, it would take the NLRB down to only two members.  This would likely deprive the NLRB of the necessary quorum to adopt the final rules.

Finally, the NLRB’s announcements today do not reveal the actual language of the amendments.  They simply summarize which portions of the regulations will be changed.  Thus, the full impact of the proposed changes is difficult to assess.  It is clear, however, that for those on the management side, the changes will not be welcome.