NLRB Reissues Election Rule Proposals; Divided Board Will Hold 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) published in the Feb. 6 Federal Register (79 Fed. Reg. 7,317) (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 (30 HRR 538, 5/21/12).

“[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.”

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.”

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

Majority Cites Delays, Inefficiencies

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.


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.”

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.

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, D.C. 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

Text of the proposed amendments may be accessed at

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