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NLRB Approves Limits on Employer Appeals During Union Elections

Posted by Mike Rudman on Nov 30, 2011 3:52:00 PM

The National Labor Relations Board voted 2-to-1 minutes ago to adopt regulations that limit the ability of employers to appeal eligibility and other issues prior to a union representation election.

NLRBThe landmark vote came after Republican NLRB Commissioner Brian E. Hayes decided against resigning from the board in a move that would have deprived the two Democratic NLRB commissioners of the three members needed to issue regulations. Hayes said he decided to remain on the NLRB because “it is not in my nature to be obstructionist.”

He nevertheless blasted what he called “a fundamentally flawed rule that is the product of a fundamentally flawed process.” Hayes said the rule would deprive both employers and workers of the ability to express opinions about collective bargaining prior to a vote on union representation.

NLRB Chair Mark G. Pearce and Craig Becker voted in favor of the regulations, which they characterized as an attempt streamline the union election process by eliminating piecemeal and appeals and making the oversight process more efficient. The vote means that a final rule will now be drafted and posted to the Federal Register.

“This has been the most open and participatory process in the 76 years of the board’s existence,” Pearce said. He noted that the NLRB received more than 65,000 comments on the proposed rules.
The proposal:

  • Allows NLRB hearing officers the authority to limit evidence introduced at a hearing to information relevant to whether a question of representation exists;
  • Eliminates the right of employers to seek NLRB review of a regional director’s pre-election rulings and consolidating all such requests for review after the election takes place;
  • Toughens the requirements for employers to seek special permission to appeal to the NLRB; and
  • Makes discretionary NLRB review of a regional director’s or judge’s disposition of post election disputes.

Hayes pleaded with Pearce and Becker to reconsider their positions, saying that it would “contravene long-standing” board rules for a two-person majority to adopt such a sweeping decision. Hayes warned that pushing through the rule changes before Becker’s recess appointment expires at the end of the year could come back to haunt the commission when the political tables are turned.

Quoting Thomas More in A Man for All Seasons, Hayes said, “I give the devil the benefit of law for my own sake.”

AIM opposes the new regulations. The association submitted written opposition to the NLRB on behalf of Massachusetts employers.

Topics: Issues, Employment Law, Organized Labor, National Labor Relations Board

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