The National Labor Relations Board (NLRB) has adopted a final rule amending its union election procedures to be effective April 30, 2012. The comment period for the June 22, 2011 Notice of Proposed Rule Making did not end until September 6, 2011 and some 66,000 comments were received.
The rule is primarily focused on procedures followed by the NLRB in cases in which parties cannot agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB regional director decides the questions and sets the election.
Going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted, rather than getting into more detailed issues on voting eligibility. Pre-election eligibility issues or appeals will be postponed until after the election, in order to expedite the election date. The NLRB hearing officer will have the authority to limit testimony to relevant issues and to decide whether or not to accept post-hearing appeals in order to expedite determination of what is an appropriate voting unit. Therefore, post-election appeals as to the voting unit or eligibility to vote will be at NLRB’s discretion, rather than a matter of right. For a detailed analysis of the new election rules from NCC allied member Wimberly, Lawson, Steckel, Schneider & Stine, go to Alert – NLRB Pushes Through Quickie Election Rules.
The new rule was passed without the traditional three-member majority that the NLRB has historically used to implement major policy changes. The two-member majority, both former union attorneys, rushed through the rule in order to take a vote before the end of the year, when the term of Democratic appointee Craig Becker’s interim appointment was set to expire. Member Brian Hayes, the lone Republican on the board, dissented. The effective date of the final rule was delayed so that Hayes will have the traditional 90 days after receiving the final draft to write a dissent and have it published prior to the effective date of the rule.
Meanwhile, President Obama on Wednesday recess-appointed his nominees to the NLRB, bypassing a likely filibuster from Senate Republicans, to keep the agency functioning in 2012. The five-member board would have been paralyzed this year because it now has only two sitting members, and the Supreme Court has ruled in 2010 that the board needs at least three members to operate and to have a quorum in order to make binding rules. The president’s move returns the board to its full slate of members for the first time since August 2010
The president used his power to make recess appointments to install Department of Labor attorney Sharon Block, labor lawyer Richard Griffin, and NLRB counsel Terence Flynn as NLRB members. Block and Griffin are Democrats, while Flynn is a Republican. The new appointees will serve for two years until the end of 2013. The president’s actions, squeezing the appointments in during a break between Senate sessions is a controversial move that the GOP called an arrogant power grab. Labor unions have been pushing the White House to make the recess appointments.
Republicans tried to prevent recess appointments by keeping the Senate in pro forma session over the holiday break, but the White House said that a pro forma session “does not override the president’s constitutional authority to make appointments to keep the government running.”
The U.S. Chamber of Commerce, which has clashed repeatedly with the NLRB in recent months, denounced the recess appointments as political favoritism and said a court battle over the constitutionality of Obama’s action is a near certainty
