Same Old, Same Old: NLRB Reproposes Controversial Union-Friendly Rule on Procedures in Representation Cases

By a narrow 3-2 margin, the National Labor Relations Board (NLRB or Board) issued a notice of proposed rulemaking (NPRM or Notice) on February 6, 2014 to amend its rules and regulations on representation election procedures under Section 9 of the National Labor Relations Act (NLRA or Act). The proposed rule is widely regarded as being more union — than employer — friendly. Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer approved the proposed rule. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.

Background

In substance, the proposed amendments are identical to the representation procedure changes first proposed on June 22, 2011. After considering the input provided in response, the Board announced on December 22, 2011 that it was going to implement a final rule adopting some of those proposed amendments and defer the remainder for further consideration. That final rule was invalidated by a District Court ruling that it had been adopted without a validly constituted quorum. The Board’s appeal of that ruling was dismissed, pursuant to a joint stipulation, on December 9, 2013.

According to the NLRB’s Office of Public Affairs, “[t]he proposals are intended to enable the Board to more effectively administer the [NLRA]. Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay.” In announcing the proposals, Chairman Pearce said: “The Board is unanimous in its support for effective representation case procedures. I am pleased that all Members share a commitment to constructive dialogue, and we all agree that important issues are involved in this proposed rulemaking.”

Pearce said that the Board is reviewing the proposed changes with an open mind: “No final decisions have been made. We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered. Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”

Summary of Proposed Changes

According to the majority, the proposed rules would:

• Allow for electronic filing and transmission of election petitions and other documents;
• Ensure that employees, employers, and unions receive and exchange timely information they need to understand and participate in the representation case process;
• Streamline pre-election and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
• Include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
• Consolidate all election-related appeals to the Board into a single post-election appeals process.

While rather innocuous on its face, the proposed rule will shorten the time frame after a petition is filed and before a union election is held and will delay most legal challenges until after the election has taken place — changes unions have said will prevent employers from creating unnecessary delays but that employers have argued will hinder their ability to communicate their opposition to union campaigns effectively to their workers. Some of the legal challenges that previously took place before an election — including whether or not certain workers were eligible to vote — would now have to wait until after the election occurs.

The proposed rule change came in response to union officials who complained that elections were taking too long. In 2013, the median union election lasted 38 days from start to finish. In contested cases, the median was 59 days.

Dissent

Stressing their support for constructive dialogue on these issues, Members Miscimarra and Johnson stated that “[t]he Board’s conduct of elections may not be tilted against or in favor of any party or outcome.” With respect to shortening timeframes, the dissenting members stated: “If some elections involve excessive delay — and objective evidence shows this occurs at most in only a very small percentage of Board-conducted elections — this is not a rational basis for rewriting the procedures governing all elections.” They expressed concern that the proposed rules accomplish what Congress has indicated the Board may not do regarding important election issues, which is to conduct the “election now, hearing later,” and to cause employees to “vote now, understand later.”

The dissent also argued that “the new NPRM does not reflect a de novo examination of important election-related issues,” because it is identical in substance to the 2011 proposed rule. “There is no collection of other new data relevant to assess whether the NPRM is necessary at this time or whether alternative measures might more effectively address whatever election issues might be genuine reasons for concern.”

The dissent then offered some specific suggestions to improve the representation case procedures. They concluded by stating that “these types of initiatives, if backed by the full Board, could receive substantial support from unions, employees, and employers, among others.” They argued that their approach “would bolster the Board’s enviable track record of conducting elections with integrity and transparency.”

Public Comment and Hearings

The public is invited to comment on the proposed changes. The deadline for comments is April 7, 2014. Reply comments to the initial comments may be filed by April 14, 2014. In addition, the Board will hold a public hearing during the week of April 7, at which members of the public may address the proposed amendments and make other suggestions for improving the Board’s representation case procedures.

Conclusion

The Arent Fox Labor & Employment group will continue to monitor the progress of these proposed rules. If you have any questions about them, please contact the authors or any other member of the group.