June 21, 2011
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The National Labor Relations Board will publish in the Federal Register tomorrow a Notice of Proposed Rulemaking, which proposes amendments to its existing rules and regulations governing procedures in representation cases. The proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.
“One of the most important duties of the NLRB is conducting secret-ballot elections to determine whether employees want to be represented by a labor union,” said Chairman Wilma B. Liebman in a statement. “Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years.” Click here to view her full statement.
If finally adopted after a public notice-and-comment process, the proposed amendments would:
* Allow for electronic filing 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.
* Standardize timeframes for parties to resolve or litigate issues before and after elections.
* Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
* Defer litigation of most voter eligibility issues until after the election.
* Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
* Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
* Make Board review of post-election decisions discretionary rather than mandatory.
For details on the proposed amendments, view our fact sheet here and summary here.
As the Notice of Proposed Rulemaking states:
The Board believes that the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation. The proposed amendments would simplify representation-case procedures and render them more transparent and uniform across regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request. The proposed amendments would allow the Board to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret ballot election.
Board Member Brian Hayes dissented from the proposed rulemaking. In his opinion,
The Board and General Counsel are consistently meeting their publicly-stated performance goals under the current representation election process, providing an expeditious and fair resolution to parties in the vast majority of cases, less than 10 percent of which involve contested preelection issues. Without any attempt to identify particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious preelection process and a more limited postelection process that tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress. Disclaiming any statutory obligation to provide any preliminary notice and opportunity to comment, the majority deigns to permit a limited written comment period and a single hearing when the myriad issues raised by the proposed rules cry out for far greater public participation in the rulemaking process both before and after formal publication of the proposed rule. The majority acts in apparent furtherance of the interests of a narrow constituency, and at the great expense of undermining public trust in the fairness of Board elections.
An excerpt from his dissent may be found below.***
In the Notice of Proposed Rulemaking, the Board responded to the dissent.
Public comments are invited on all aspects of the proposed rules and should be submitted within 60 days of publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. Reply comments to the initial comments may be filed during an additional 14 day period. In addition, members of the public will be invited to attend a public hearing, to be scheduled for July 18 and July 19, if necessary, to comment on the proposed amendments and make other suggestions for improving the Board’s representation case procedures.
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***V. Dissenting View of Member Brian E. Hayes
MEMBER HAYES, dissenting,
Today, my colleagues undertake an expedited rulemaking process in order to
implement an expedited representation election process. Neither process is appropriate or
necessary. Both processes, however, share a common purpose: to stifle full debate on
matters that demand it, in furtherance of a belief that employers should have little or no
involvement in the resolution of questions concerning representation. For my part at
least, I can and do dissent.
First, the rulemaking process:
The last substantive rulemaking effort of comparable scale involved the
determination of appropriate bargaining units in the health care industry. The need for
this effort was obvious, based on years of litigation highlighting specific problems and
differences among the Board, the courts of appeals, and health care industry constituents.
The initial July 2, 1987 notice of proposed rulemaking was followed by a series a four
public hearings, the last one held over a 7-day period, in October 1987. Thereafter, the
written comment period was extended. Another rulemaking notice followed on
September 1, 1988. It reviewed the massive amount of oral testimony (3545 pages and
144 witnesses) and written comments (1500 pages filed by 315 individuals and
organizations) received during the prior year and announced a revised rule with another
6-week period for written comment. The final rule was published on April 21, 1989,
almost 2 years after the initial notice.
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In marked contrast to the health care unit rulemaking, my colleagues put forth
proposals on their own initiative, not in response to any petition for rulemaking or in
response to any specific problems defined by prior litigation. The need for their proposed
electoral reform, which directly affects every employer and employee in every industry
subject to Board jurisdiction, is far from obvious. The proposed revisions largely reflect
the narrow concerns and proposals of a few academicians.62 Rather than proceeding with
the preparation and publication of rules responsive to just this one small and ideologically
homogenous group, it was incumbent on the Board to have a far more inclusive public
discussion of the need for electoral reform before determining what rule revisions to
propose formally in the Federal Register.63 In this regard, President Obama’s Executive
Order 13563 specifically states that “[b]efore issuing a notice of proposed rulemaking,
each agency, where feasible and appropriate, shall seek the views of those who are likely
to be affected, including those who are likely to benefit from and those who are
potentially subject to such rulemaking.64 While this Order is not binding on the Board, as
62 E.g., Charles Craver, The National Labor Relations Act at 75: In Need of a Heart
Transplant, 27 Hofstra Lab. & Emp. L.J. 311 (2010); William B. Gould, The Employee
Free Choice Act of 2009, Labor Law Reform, and What Can Be Done About the Broken
System of Labor-Management Relations Law in the United States, 43 U.S.F.L. Rev. 291
(2008); Charles J. Morris, Renaissance at the NLRB – Opportunity and Prospect for Non-
Legislative Procedural Reform at the Labor Board, 23 Stetson L. Rev. 101 (1993).
63 I disagree with my colleagues’ characterization of the proposed rule revisions as
“almost entirely” procedural in nature. Accordingly, I find that the notice and comment
procedure is mandatory, not discretionary.
64 E.O. 13563, 76 FR 3821, 3821-23 (Jan. 21, 2011) (emphasis added).
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an independent agency, “such agencies are encouraged to give consideration to all of its
provisions, consistent with their legal authority.”65
It was both “feasible and appropriate” for the Board to seek the views of those
likely to be affected before issuing the notice of proposed rulemaking. At the very least,
the proposals should have been previewed for comment by the Board’s standing Rules
Revision Committee, a group of agency officials specifically identified as responsible for
considering and recommending modifications in existing rules and proposed new rules,66
and by the Practice and Procedures Committee of the American Bar Association, a group
representative of the broad spectrum of private and public sector labor-management
professionals that frequently serves as a sounding board for revisions of our Rules. I
believe the Board should also have exercised its discretion to hold an open meeting under
the Government in Sunshine Act67 when voting to authorize a rule revision proposal.68
Alternatively, the Board could have undertaken negotiated rulemaking.69 Any of the
65 Office of Management and Budget Memo 11-10, Memorandum for the Heads of
Executive Departments and Agencies, and of Independent Regulatory Agencies:
Executive Order 13563, “Improving Regulation and Regulatory Review” (February 2,
2011), available at www.whitehouse.gov/omb/memoranda.
66 See May 23, 2011, letter from Board Executive Secretary submitting the Board’s
Preliminary Plan to Review Significant Regulations to the OMB Office of Information
and Regulatory Affairs in response to Section 6 of Executive Order 13563, available at
http://www.slideshare.net/whitehouse/national-labor-relations-board-preliminaryreform-
board.
67 Government in the Sunshine Act, 5 U.S.C. 552b.
68 My point is not that the process followed to date is impermissible. It is that a more
open public process would be far more preferable and consistent with Executive
Order guidelines.
69 See Negotiated Rulemaking Act, 5 U.S.C. 561 et seq.
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suggested processes could have encouraged consensus in rulemaking, rather than the
inevitably divisive approach my colleagues have chosen by publishing their proposed
rules with no advance notice or public discussion of their purpose or content.
The limitation on public participation in this process continues with my
colleagues’ choice of a 60-day written comment period, a 14 day reply period, and one
public hearing for discussion about the proposed rules. Again, the contrast with health
care unit rulemaking is marked. While I do not suggest that the proposed rulemaking
process needs to last 2 years, I think it manifest that 2 and a half months in the dead of
summer is too little time, and written comment with a single hearing is too limited a
method, for public participation in discussing the myriad issues raised. There needs to be
a more extended comment period and a full opportunity for broad stakeholder input
through multiple public hearings on proposed rules of this magnitude.
It is utterly beside the point, and should be of little comfort to the majority, that its
actions may be in technical compliance with the requirements of the Administrative
Procedure Act (APA) and other regulations bearing on the rulemaking process. President
Obama’s Memorandum on Transparency and Open Government, issued on January 21,
2009,70 makes clear that independent agencies have an obligation to do much more than
provide minimum due process in order to assure that our regulatory actions implement
the principles of transparency, participation, and collaboration. As explained in the
subsequent directive from the Director of the Office of Management and Budget, these
70 74 FR 4685, 4685-86 (Jan. 26, 2009).
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principles “form the cornerstone of an open government.”71 Sadly, my colleagues reduce
that cornerstone to rubble by proceeding with a rulemaking process that is opaque,
exclusionary, and adversarial.72 The sense of fait accompli is inescapable.
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