NLRB Changes the Game with Regulations Streamlining Union Elections

By Marina Blickley Litigation Associate Labor and Employment Group, Venable LLP | April 01, 2012

Co-authored by Greg Ossi, Partner, Venable LLP

When President Obama was elected in 2008 there was significant speculation regarding how actively he would pursue a pro-union agenda. However, the push for healthcare reform coupled with the declining economy stymied legislative efforts to aid union organization. For example, the union-backed Employee Free Choice Act failed to win passage in Congress. Now, more than three years later, a similar pro-union initiative appears to be quickly on the rise through the administrative process.

The National Labor Relations Board ("NLRB" or "Board"), the quasi-judicial body charged with interpreting and enforcing the National Labor Relations Act ("NLRA"), recently undertook rulemaking designed to make unionization easier in the future. This rulemaking began in the summer of 2011 when the NLRB consisted of just one republican, Member Brian Hayes, and three democrats, Chairman Wilma Liebman and Members Craig Becker and Mark Pearce.

On June 22, 2011, the Board published proposed changes to the regulations governing union elections which, if enacted, would change the way a union representation campaign is run. Most notably, the proposed rule would shorten the timeline from petition to election, making it much more difficult for an employer to express its view of unionization. According to the Board, the twenty proposed changes were necessary to "simplify representation-case procedures" and "eliminate unnecessary litigation, and consolidate requests for Board review of regional directors' pre- and post-election determinations into a single post-election request." In practice, many of the proposed changes were seen by the employer community, including many restaurant and hospitality associations nationwide, as clearly designed to favor unionization and limit an employer's ability to provide employees with the company's position if a union were to seek to organize a workforce.

After the proposed rules were published the Board received over 65,000 written comments from interested parties such as labor organizations, chambers of commerce, and business groups. However, 90% of the total comments were found by the Board to be either "duplicates, near duplicates, devoid of analysis or irrelevant" and thus were not considered or reviewed. In addition, on July 18 and 19, 2011 the Board held a two day hearing where sixty six parties were heard by the Board for about five minutes each.

By November, Chairman Wilma Liebman's appointment had expired and Member Craig Becker's appoint was set to expire at the end of the year. Because the Board must act with at least a 3-member quorum, the Board had to move quickly to approve the proposed modifications prior to substantially losing its ability to act. Thus, in late November the Board (with a 2-1 party-line vote) voted in favor of adopting some of the proposed amendments and the final regulations were published in the Federal Register on December 22, 2011. Notably, a number of the most controversial proposals were not included in the final rule, although the Board reserved its right to act on the proposals at a later time.

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