by Joseph U. Leonoro
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:
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
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.
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