On November 30, the National Labor Relations Board ("NLRB" or "Board") passed a resolution to implement a modified version of the Board's earlier proposal to cut down on time it takes to conduct union elections. The vote was along party lines, with the Board's two Democrats, Chairman Mark Pearce and Member Craig Becker, voting in favor of the resolution, and the Board's sole Republican, Member Brian Hayes, voting against it.
The resolution authorizes the preparation of a final rule that would: (1) give hearing officers more authority to limit evidence introduced at pre-election hearings on representation issues; (2) limit the use of post-hearing briefs in pre-election hearings; (3) eliminate parties' right to seek Board review of a regional director's pre-election rulings while allowing parties to seek post-election review of all such rulings that have not been rendered moot by the election; (4) eliminate the current restriction on setting election dates no sooner than 25 days after a direction of election in order to permit the Board to rule on any request for review; (5) "clarify" the standard for seeking permission to appeal to the Board; and (6) make Board review of a regional director's or judge's disposition of post-election disputes merely discretionary after both stipulated and directed elections.
Prior to the vote, there had been speculation that Member Hayes would resign from the Board in order to short-circuit the ability of the Board to promulgate a rule on the election process, since the Board then would have been left with only two out of its statutorily-mandated five members. Under the U.S. Supreme Court's decision in New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010), which invalidated numerous decisions by a two-member NLRB during 2008-2010, the Board cannot make decisions with only two of its five seats filled. Member Hayes did not resign, but instead expressed concern that without three affirmative votes (i.e., a majority of a fully-constituted Board), any final rule would be null and void.
The Board will need to vote again on the final rule crafted based upon the resolution; however, the timing of the final rule's passage is complicated by the fact that the term of Member Becker, who was a recess appointment last year by President Obama after his nomination stalled in the Senate, ends December 31. In the absence of another appointment, the Board will once again be down to two members in 2012, and, thus, the Board will not be able to act on the rule.
Chairman Pearce stated that his intention in moving forward with a modified rule on union elections is to cut down on the possibility of legal challenges to the rule from its opponents. Nevertheless, Member Hayes' concern about the need for three affirmative votes -- an issue left open by the Supreme Court in New Process Steel -- indicates that any final rule passed by the Board likely will be subject to immediate challenge upon passage.
If you have any questions about the material presented in this alert, please contact any member of Baker Hostetler's Labor Relations Team.
Authorship Credit: Patrick M. Muldowney