November 22, 2011

Despite Opposition, NLRB to Vote on Significant Changes to Union Election Procedures

The National Labor Relations Board (the "Board") will vote November 30, 2011 on a limited number of the comprehensive changes to union election procedures it proposed in June 2011 (discussed in detail here).  In a press release, the Board said its November 30 vote will be limited to several provisions of its election procedure proposal that are designed to reduce unnecessary litigation.  The Board has not yet disclosed the particular provisions it will vote on at its meeting.

The Board's proposed union election procedure rules drew more than 65,000 public comments and significant opposition from members of Congress.  In response to the Board's proposal, Congressman John Kline (R-MN), the chairman of the Education and the Workforce Committee in the House of Representatives, introduced H.R. 3094 on October 5, 2011.  Congressman Kline's bill, titled the Workforce Democracy and Fairness Act, would reverse the Board's proposed election procedure changes by ensuring that no union election could take place less than 35 days after an election petition is submitted.  On November 18, Congressman Kline's bill was approved for debate and a vote by the full House.  

The Board's November 30 vote comes amid significant dissent from one of its own members.  On November 18, Board member Brian Hayes, the sole Republican appointee on the three-member Board, wrote a stinging letter to Congressman Kline criticizing the Board's recent rulemaking conduct.  Member Hayes told Congressman Kline that despite its representations to Congress, the Board is committed to issuing final election procedure rules before the end of Member Craig Becker's term on the Board.  Member Becker is a Democratic recess appointee whose term expires on December 31, 2011.  The expiration of Member Becker's term will leave the Board one member short of the number required to issue decisions under the Supreme Court's New Process Steel, L.P. v. NLRB decision (discussed in detail here).  In his letter, Member Hayes notified Congressman Kline that the Board's plan to push through its election procedure changes contradicted an earlier letter to Congressman Kline from the Board's Solicitor.  In that letter, the Solicitor claimed that the Board had no firm timeline for issuing its final election procedure rules.    

Member Hayes strongly criticized the Board for excluding him from the drafting of the final rule, depriving him of a meaningful opportunity to voice dissent, and abandoning Board custom of not changing existing law without the affirmative votes of three Board members.  Member Hayes further complained that as a result of its singular focus on pushing through its final rules, the Board has been neglecting its processing of unfair labor practice and representation cases.

It remains unclear what specific proposals the Board will vote on at its November 30 meeting.  With two Democrats on the Board, it appears likely that any proposal will pass.  Congressman Kline's bill will be taken up for debate by the full House of Representatives following its return from Thanksgiving break.  While Congressman Kline's bill appears likely to pass the House of Representatives, its prospects are dim in the Democrat-controlled Senate.

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