DID THE BOARD BLINK?
On June 22, the National Labor Relations Board published a Notice of Proposed Rulemaking as the first step in its massive overhaul of election procedures. This overhaul was obviously calculated to advantage organized labor’s organizing and disadvantage employers who wish to remain union free.
Between June 22 and August 22, the Board received over 65,000 comments and heard testimony from 65 witnesses, many, if not most, objecting to the proposed rule changes.
On August 23, then Chairman of the Board, Wilma Liebman’s term expired, leaving the Board with only three members, Democrats Becker and Pearce and Republican Hayes. At the end of the current legislative session, Becker, a recess appointment, will have his term expire. Upon the expiration of Becker’s term, the Board will lose the quorum (three) required for decisions and other official actions. In short, the Board will be out of business.
Two weeks ago, the Board gave notice that it would issue a modified set of new rules governing election procedures on November 30, to beat the deadline before it loses its ability to act due to a loss of quorum.
Hayes threatened to resign before November 30, claiming that the contemplated action was without his knowledge or participation in the process of determining what the new rules would be. His resignation would deny the Board the legal ability to adopt the new rules because it would cease to have the necessary quorum.
Today the Chairman of the Board, Pearce, released the details of the rule changes that will be presented for final adoption tomorrow. Hayes has not resigned and, in light of the lateness of the hour, it is unlikely that he will resign. Consequently, the Board will have a quorum and the proposed rule changes in the Chairman’s Resolution will become final with Pearce and Becker passing them over the expected dissent by Hayes.
In short, they rule changes that will be made final tomorrow are of only minor moment, especially when compared to what Becker, Pearce (and previously Liebman) and organized labor really wanted. It appears that Becker and Pearce blinked in the face of Hayes’s threatened resignation and have deleted almost all of the most controversial changes that were proposed in June.
The new rules will:
1. Give the Board’s hearing officer the authority to limit evidence introduced at a representation hearing only to what the officer believes is material to whether a question of representation exists. Issues ancillary to that question, such as those having to do with supervisory status or other questions challenging the eligibility of some employees to vote may not be permitted and certainly will not be allowed to delay the process.
2. Give the hearing officer the authority to deny requests to file a brief on an issue raised at a representation hearing where the officer believes that a brief is not necessary to assist in making a decision on whether a question of representation exists.
3. Delay the review of issues that are excluded by the hearing officer at a representation hearing until the post-election hearing, when, presumably, most would have been rendered moot by the election.
4. Delete from the existing Rules the provision that provides for additional time between a representation hearing and an election to permit petitions to the Board to review decisions by the hearing officer.
5. Permit appeals to the Board from decisions made at a representation hearing only in extraordinary situations where the appeal would otherwise evade review.
6. Give the Board discretion to hear appeals in representation cases, regardless of whether the decision from which the appeal is taken is pre or post-election.
Not included in the rule changes to be finalized tomorrow (November 30) are the most controversial changes proposed on June 22:
· Electronic filing of petitions
· Requirement that representation hearings must be held within 7 days from the date of the notice of the hearing
· Requirement of a position statement at the outset of a hearing
· Preclusion of issues for trial post-election that were not included in the position statement filed at the representation hearing
· Inclusion of email addresses and phone numbers on voter lists
· Reduction in time for providing the voter list to the union from the current 7 work days to 2 work days
Chairman Pearce emphasized in his press release today, however, that the additional changes are still on the table and “remain under consideration by the Board for possible future action.” Stay tuned.
While the Board can be criticized for making decisions that do not reflect the real world, this much we now know – they have learned the definition of “hard bargaining,” thanks to Brian Hayes.
Even though the threat of the Board using its rule-making authority to tilt the field favorably in the direction of organized labor apparently has subsided for the time-being, we should be keeping a wary eye on Lafe Solomon, the General Counsel, and other actions the Board may take that do not rise to the level of formal rulemaking. For example, the current guideline for Regional directors that elections must be held within 42 days from the date of a petition, absence extraordinary circumstances, is not part of any formal rule. It is a guideline that can be changed without a lengthy hearing or comment process.
Because of the continuing threat that the Board, either through its members or General Counsel, will take some action that will prejudice the ability of employers to combat union organizing, employers who wish to remain union-free should be doing those things now that are designed to neutralize and combat any appeal that a union may have to its employees.