The National Labor Relations Board Proposes Amendments to Improve Representation Case Procedures

The National Labor Relations Board announced today that it is issuing proposed amendments to its rules and regulations governing representation-case procedures. In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011. A Notice of Proposed Rulemaking (NPRM) will appear in the Federal Register tomorrow. The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act. Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay. Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.

In announcing the proposals, Pearce said: “The Board is unanimous in its support for effective representation case procedures. I am pleased that all Members share a commitment to constructive dialogue, and we all agree that important issues are involved in this proposed rulemaking. With a Senate-confirmed five-member Board, I feel it is important for the Board to fully consider public comment on these proposed amendments, along with the comments we previously received in 2011. These amendments would modernize the representation case process and fulfill the promise of the National Labor Relations Act.”

“I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment,” Pearce said. He stressed that the Board is reviewing the proposed changes with an open mind: “No final decisions have been made. We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered. Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”

“Unnecessary delay and inefficiencies hurt both employees and employers. These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” Pearce said. “We look forward to further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”

The reforms the Board will propose would:

• allow for electronic filing and transmission 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;
• streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
• include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
• consolidate all election-related appeals to the Board into a single post-election appeals process.

The previous NPRM was published on June 22, 2011. After considering the input provided in response, the Board had announced on December 22, 2011 that it was going to implement a final rule adopting some of those proposed amendments and defer the remainder for further consideration. That final rule was invalidated by a District Court ruling that it had been adopted without a validly constituted quorum. The Board’s appeal of that ruling was dismissed, pursuant to a joint stipulation, on December 9, 2013.

The public is invited to comment on the proposed changes. The deadline for comments is April 7, 2014. Reply comments to the initial comments may be filed by April 14, 2014. Details on how to submit comments are set forth in the NPRM. In addition, the Board will hold a public hearing during the week of April 7, at which members of the public may address the proposed amendments and make other suggestions for improving the Board’s representation case procedures.

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