Wednesday, February 5, 2014
The NLRB has just announced that it is proposing new election rules. To be more accurate, it is proposing the identical set of reforms that it proposed on June 11, 2011. We described those proposals here, which were ultimately watered down when the Boar finalized its election rules. Of course, as readers well know, the NLRB faced many challenges to those rules, particularly based on procedural objections, which led it recently to withdraw the rules. As we have noted, opponents to these reforms should've been careful what they ask for, as the challenges gave the Board a good excuse to go back to the drawing board and come out with more robust changes, which it is now doing. For those disappointed by the watering down of the June 2011 proposals, this is a possible silver lining to the entire issue.
From the NLRB's announcement:
The National Labor Relations Board announced today that it is issuing proposed amendments to its rules and regulations governing representation-case procedures. In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011. A Notice of Proposed Rulemaking (NPRM) will appear in the Federal Register tomorrow. The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act. Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay. Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented. . . .
“I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment,” Pearce said. He stressed that the Board is reviewing the proposed changes with an open mind: “No final decisions have been made. We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered. Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”
“Unnecessary delay and inefficiencies hurt both employees and employers. These proposals 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. “We look forward to further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”
The reforms the Board will propose would:
- allow for electronic filing and transmission of election petitions and other documents;
- ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
- streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
- include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
- consolidate all election-related appeals to the Board into a single post-election appeals process.