As we discussed at our Labor & Employment Group client briefing in October, the National Labor Relations Board ("NLRB" or "Board") proposed in June 2011 a new rule for Board-conducted elections. The purpose of the proposed rule was to shorten the time between the filing by a union of a petition for an election and the actual election, reduce unnecessary litigation and disputes on issues concerning questions of representation before the election, and provide more employee contact information to unions prior to the election. The proposed rule has been extremely controversial, generating over 65,000 comments submitted to the NLRB by interested parties. The proposed rule has been widely criticized by the business community, which fears that a shortened time period between the filing of the petition and the actual election will hinder a company's ability to get its message out to its employees, which in turn will lead to more unions winning elections.

We also noted at our client briefing that the term of Member Becker will expire at the end of the year, leaving the NLRB with only two members — Chairperson Pearce, a Democrat and Member Hayes, a Republican. Once this occurs, the Board will be without the authority to promulgate new rules or render final decisions by reason of the U.S. Supreme Court's decision in New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), wherein the Court held that the authority of the Board to issue final decisions cannot be delegated to a panel with fewer than three members.

In an effort to get at least some portions of the proposed rule passed before the expiration of Member Becker's term, on November 29 Chairperson Pearce issued a resolution to approve certain procedural elements of the initial proposed rule. The resolution was passed at a public hearing held on November 30, with Chairperson Pearce and Member Becker voting in favor of the resolution, and Member Hayes opposing it.

The resolution calls for the following changes to election procedures:

1. Hearing officers have the authority at pre-election hearings to limit evidence to genuine issues of fact material to the issue of the existence of a question concerning representation.
2. Post-hearing briefs may be filed at the discretion of the hearing officer rather than as a matter of right.
3. Pre-election rulings by a regional director would no longer be reviewable prior to the election, but would be reviewable post-election if the issues were not rendered moot by the results of the election.
4. NLRB review of post-election disputes will be in the Board's discretion.
5. Language in the NLRB's current statement of procedure that prohibits a regional director from scheduling an election sooner than 25 days after the direction of election would be eliminated.

The resolution did not adopt some of the more controversial aspects of the initial proposed rule, such as the proposal that an employer must give the NLRB and the union the name, personal email address, home address and home telephone number of employees eligible to vote within two days of the direction of the election (under current law, the employer need only disclose the name and home address of eligible employees within seven days). However, the resolution requires the Board to continue to deliberate on the remaining unresolved issues under the initial proposed rule.

Member Hayes, the sole Republican on the Board, strongly opposed the adoption of the resolution on both substantive and procedural grounds. He noted that current elections are held on average within 38 days of the filing of the petition and that there is thus no reason to change existing procedures. Moreover, he stated that no proposed rule should be adopted without the affirmative vote of at least three Board members.

The NLRB will now draft and issue a final rule incorporating the above changes and deferring the remainder of the initial proposed rule for further consideration. According to an NLRB spokesperson, it is anticipated that the final rule will be issued and voted on prior to the expiration of Member Becker's term at the end of December.

In a related development, the House of Representatives on November 30 passed the Workforce Democracy and Fairness Act (H.R. 3094), a bill designed to prevent the NLRB from promulgating or enforcing its proposed new rule on union elections. The bill, among other things, would prohibit an election from being held in less than 35 days after the filing of a petition for an election and would require a waiting period of at least two weeks between the filing of the petition and any hearing on issues raised by the petition. The bill will now be submitted to the Senate for its consideration.