The National Labor Relations Board voted 2-1 on Nov. 30 to move forward with a proposal to amend certain representation election procedures in order to reduce unnecessary litigation in disputed cases.
Chairman Mark Gaston Pearce and Craig Becker, both Democrats, voted in favor of the proposal, with Brian Hayes, the lone Republican board member, voting no. The panel will now draft a final rule that the board must vote on and approve before it could go into effect.
How the vote would go, and whether Hayes would even participate in the vote, was the subject of much speculation in the press and among political observers. Craig Becker said, “This rulemaking unfortunately has been marked by reckless allegations and easy labeling.”
Hayes said prior to the vote that he had considered resigning because of his concerns with the proposal and the process by which it was crafted, but opted not to so that he could still have a say in the development of the rule.
He said he could not vote for the rule. “This is a fundamentally flawed rule. It is the product of a flawed process,” he said.
But Becker and Pearce said the changes were necessary to avoid unnecessary litigation and to make the board more efficient. Key provisions included limiting the scope of pre-election hearings to issues relevant to whether an election should be held, delaying appeals relating to pre-election issues until after an election is held, and eliminating the waiting period between the pre-election appeal and the actual election.
The resolution trimmed several provisions originally proposed in the notice of proposed rulemaking on June 22, including a controversial measure that would shortened the time frame for representation elections. Business groups, including construction groups, and Hayes oppose that measure, saying it would not give employers enough time to prepare for a representation election.
Hayes contended that Pearce’s resolution would still shorten the time frame for elections. Becker countered that Hayes’ interpretation of the resolution represented a “misunderstanding” of Pearce’s intent.
Pearce noted that the Nov. 30 vote was an “interim step” and that the decision “is not the final agency action.” But if the board members are unable to come to a consensus by the end of the year, Pearce will have an uphill battle. Becker’s term expires at the end of the congressional session.