NLRB Reissues Election Case Rule Proposals; Divided Board Will Schedule Hearing in April

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By Lawrence E. Dubé  

Feb. 5 --The National Labor Relations Board by a 3-2 vote reissued proposed amendments to its representation case rules that were first proposed in 2011.

NLRB Chairman Mark Gaston Pearce (D) and Members Kent Y. Hirozawa (D) and Nancy Schiffer (D) voted to move forward with the proposal, while Members Philip A. Miscimarra (R) and Harry I. Johnson (R) dissented.

In its notice of proposed rulemaking (NPRM) scheduled for publication in the Feb. 6 Federal Register (RIN 3142-AA08), the NLRB said it “is again proposing the same changes” it included in a 2011 proposal. The board adopted a portion of those proposed rules, but a federal district court in 2012 found the action was invalid.

The U.S. District Court for the District of Columbia held that the amendments were not properly adopted by the board, but did not reach challenges to the substance of the proposed amendments.

“[T]he court invited the Board to reapply itself to the proposals contemplated in 2011,” the NLRB wrote in the new rulemaking notice. “By the present proposal, the Board is undertaking to do just that, and inviting the public to comment.”

Comments are due April 7. The NLRB plans to hold a public hearing on its proposals during the week of April 7.

The proposed amendments would “modernize the representation case process and fulfill the promise of the National Labor Relations Act,” Pearce said in a statement.

In a joint dissent, Miscimarra and Johnson wrote they “support rulemaking if it is necessary to address relevant issues consistent with the Board's authority and the Act's requirements.” However, they wrote, they disagreed with the majority on “important considerations about this NPRM that, in our view, make it contrary to the Act and ill-advised.”

Changes First Proposed in 2011

On June 21, 2011, a board majority consisting of Chairman Wilma B. Liebman (D) and Members Pearce and Craig Becker (D) proposed changes to the procedures for holding representation elections (119 DLR AA-1, 6/21/11), and a notice of proposed rulemaking was published in the June 27, 2011, Federal Register (76 Fed. Reg. 37,291).

Stating that they were seeking to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation” under the NLRA, the board members said the proposed rule changes would streamline litigation and limit the availability of board review in representation cases. Member Brian E. Hayes (R) dissented from the 2011 rulemaking proposal.

The board held a two-day public meeting in July 2011 on the proposal (137 DLR AA-1, 7/18/11; 138 DLR A-1, 7/19/11), and received more than 65,000 public comments.

At a public meeting in November 2011, Pearce, who became chairman of the agency when Liebman's term ended in August, and Becker voted on a resolution to immediately adopt portions of the June proposal, while deferring action on the remaining elements (230 DLR A-1, 11/30/11). Hayes again opposed the majority's effort.

But the board proceeded to grant final approval of the modified rule changes, which made seven changes in NLRB procedures (76 Fed. Reg. 80,138; 245 DLR AA-1, 12/21/11).

The proposed amendments would “modernize the representation case process and fulfill the promise of the National Labor Relations Act,” Chairman Pearce (D) said in a statement.  

Business Groups Prevailed in Court Challenge

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace sued to block implementation of the amendments. The groups argued a number of objections, including that the final rule violated the NLRA, exceeded the board's statutory authority, and was contrary to the First and Fifth amendments to the U.S. Constitution, which guarantee the rights to free speech and due process.

The court found that Pearce and Becker recorded their final votes to approve the representation case amendments using an electronic case management system, while Hayes did not cast a vote (Chamber of Commerce v. NLRB, 879 F. Supp. 2d 18, 193 LRRM 2316 (D.D.C. 2012); 93 DLR AA-1, 5/14/12).

Finding Hayes was not present for the agency's final vote on the representation case rulemaking, the court said, “Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough.” The court ordered the board to suspend enforcement of the rule changes and resume processing representation cases under its earlier rules.

However, the district court did not resolve the business groups' statutory and constitutional challenges. The court expressed no opinion about what outcome might follow reconsideration of the rulemaking by a properly constituted NLRB quorum.

NLRB appealed the ruling to the U.S. Court of Appeals for the District of Columbia Circuit, but withdrew its appeal in December (238 DLR A-3, 12/10/13).

Majority Cites Delays, Inefficiencies

In its statement announcing the new action, the NLRB said the proposed amendments are identical in substance to the changes first proposed more than two and a half years ago.

Pearce said in the statement that reissuing the same proposals “is the most efficient and effective rulemaking process at this time.” The board members will review all of the comments filed in response to the earlier proposals, the chairman said, so the public will not have to take any further action to have the earlier comments considered by the board.

“We believe that the original NPRM still frames the issues well and raises the appropriate concerns and questions for public comment,” the board majority said in the rulemaking notice. It said the “relevant circumstances have not changed in any significant way since the NPRM first issued in June of 2011.” The majority said “the proposal does not in any way suggest the Board's prejudgment of the merits of the proposals and, likewise, does not imply rejection of any of the matters raised in prior comments.”

In the NLRB statement, Pearce said unnecessary delays and inefficiencies in the board's representation case processes hurt both employees and employers.

“These proposals,” the chairman said, “are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union.” Pearce said the board looks forward to “further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”

Summarizing “reforms the Board will propose,” the NLRB said the rule changes would:

• allow for electronic filing and transmission of election petitions and other documents;

• ensure employers, unions, and employees receive and exchange on a timely basis information needed for their understanding and participation in representation cases;

• streamline pre-election and postelection procedures to facilitate agreements in representation cases and eliminate unnecessary litigation;

•  add employee telephone numbers and e-mail addresses to voter lists used in the NLRB elections in order to facilitate communications with voters; and

• consolidate all election-related appeals to the board into a single postelection appeals process.

Dissenters Oppose 'Wholesale Rewrite.'

In their dissent, Miscimarra and Johnson said they are not “irrevocably committed to the status quo,” and they share the majority's desire “to more effectively protect and enforce the rights and obligations of parties subject to the Act.”

However, the dissenting members wrote, the board's statutory authority to adopt rules and regulations to carry out the provisions of the federal labor law is not unlimited. “[N]o reasons articulated in the NPRM warrant a wholesale rewrite, in one stroke, of the procedures governing every representation election conducted by the Board.”

Miscimarra and Johnson said NLRB election statistics “seem to disprove the existence of a systemwide delay problem, and instead demonstrate that delay is only an issue confined to a discrete minority of cases, possibly for issues unique to those cases.”

“Rather than engaging in a wholesale revision of the procedures applicable to all elections,” the two members said, “the Board should closely examine the particular reasons that have contributed to those relatively few elections that have involved unacceptable delay.”

The dissenting members said there are election case reforms that “if backed by the full Board, could receive substantial support from unions, employees, and employers, among others.”

“In any event,” Miscimarra and Johnson said, “the most important starting point is to have a de novo examination of whether and why there should be further rulemaking.” Such an examination, they said, “would instill greater public confidence in any resulting Board initiatives.”

Dissenting from the proposal, Members Miscimarra (R) and Johnson (R) said “no reasons articulated in the NPRM warrant a wholesale rewrite, in one stroke, of the procedures governing every representation election conducted by the Board.”  


Initial Comments Show Persisting Controversy

Initial comments on the NLRB's new proposal reflected the same disagreement that marked the board's earlier consideration and adoption of rule changes.

Sen. Lamar Alexander (R-Tenn.), ranking member on the Senate Health, Education, Labor and Pensions Committee, issued a statement Feb. 5 criticizing the proposal as an effort to authorize “ambush elections” that would shorten the time period from the filing of a representation petition to the conduct of an election.

“Ambush elections are one more example of how the Obama National Labor Relations Board continues to be more of a union advocate than an umpire,” Alexander said. “This latest effort is a political power play on behalf of unions that makes an end run around employers and forces workers to make decisions without all of the facts.”

House Education and the Workforce Committee Chairman John Kline (R-Minn.) and Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-Tenn.) expressed similar views in a joint statement.

“This ambush election scheme will make it virtually impossible for workers to make an informed decision in union elections,” said Kline, arguing “every employee deserves a reasonable amount of time to consider all the facts before casting his or her vote.”

Roe called the board's proposals “flawed” and said “the only entity that stands to gain is Big Labor.” The subcommittee chairman said, “Rather than work to restore the public's trust, the board seems determined to make matters worse.”

Kline said, “the committee will continue to conduct aggressive oversight of this deeply misguided rule.” The panel announced it will hold a hearing on the NLRB rulemaking proposal on March 5.

But Rep. George Miller (D-Calif.), ranking member on the House Education and the Workforce Committee, praised the board's action.

“This common-sense rule will reduce frivolous litigation, reduce delays in scheduling union elections, streamline the appeals process, and strengthen the NLRB's hearing procedures,” Miller said in a statement.

“Employees choosing to form a union should not be subject to malicious and relentless delays by employers trying to scuttle a simple up or down vote on forming a union,” the California Democrat said. “The proposed rule is designed to stop these abuses and promote the fair and timely elections that workers deserve.”

Sen. Tom Harkin (D-Iowa), chairman of the Senate HELP committee, was also positive about the NLRB rulemaking action. “I applaud the NLRB's continued efforts to ensure that workers, unions, and employers have access to a fair, transparent, and efficient election process,” he said in a statement.

“The existing union election process is hampered by unnecessary delays and frivolous legal challenges that can keep workers from getting a fair, up-or-down vote. These commonsense and balanced reforms go a long way toward curing the ills that currently plague the process and prevent workers from having a voice in the workplace,” Harkin said.

Comment Period Is 60 Days

NLRB's notice allows 60 days for the filing of comments on the proposed rule changes. Comments must be received at the board by April 7. The board is allowing an additional seven days for filing replies to comments; the replies must be filed by April 14.

Comments may be filed through (Docket ID No. NLRB-2011-0002).

Comments also may be sent by mail or hand delivery to: Gary Shinners, Executive Secretary, National Labor Relations Board, 1099 14th St. N.W., Washington, DC 20570.


To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at