(December 1, 2011) The National Labor Relations Board (NLRB) yesterday voted to proceed with a controversial election rule despite strong dissent from one member of the board. In a 2-1 vote, Chairman Mark Pearce and Board Member Craig Becker voted to advance the proposal while member Mark Hayes voted no.
Rumors swirled earlier this week that Hayes might resign or refuse to participate in the vote, leaving the NLRB without the quorum it needs to make major rule changes. However, Hayes said that he did not intend to resign even though he strongly opposes the rule.
HR Watchdog covered the NLRB’s mid-June announcement of the original proposed changes to the election process. The NLRB received more than 65,000 written comments on the proposed changes and heard testimony from 66 speakers over a two-day period.
On November 29, Pearce made changes to the proposed rule. Only the revised proposal was approved, but this revised proposal retains significant portions of the original proposal — portions that remain troubling to businesses. The NLRB vote advanced changes that would eliminate most pre-election challenges and move them to after the workers’ vote. Litigation surrounding union elections would be limited. Pre-election appeals would no longer be allowed, which would speed up the election process.
The NLRB will now draft a final rule which will have to be voted on again. Board Member Becker’s appointment expires at the end of the year, which will bring the NLRB down to two members and without a necessary quorum. The NLRB will have to try to get this rule through to a vote before that time.
Several provisions of the original proposal were not up for vote yesterday, including provisions that would have:
- required employers to provide the union with email addresses of employees,
- required parties to identify issues and describe evidence soon after an election petition is filed, no later than the start of the hearing and prior to any other evidence being accepted; and
- required that hearings be set for seven days after service of the notice of hearing. These items are still up for consideration for later action.
In dissent, Hayes argued that the NLRB should not proceed with the vote given the significance of the proposed changes.
“I deeply believe that whatever one’s view of the need for election rule revisions may be, a final rule should not be issued in the absence of three affirmative votes to do so,” Hayes said.