Decision on NLRB Union Elections Rule Expected

November 29, 2011

The National Labor Relations Board (NLRB) has scheduled a vote on its proposed union election rule for Wednesday afternoon, Nov. 30.  NSBA has opposed this rule in formal comments to the NLRB.

The rule is expected to pass with some changes unless NLRB member Brian Hayes resigns, as some have encouraged him to do. The NLRB has five seats and two currently are vacant. If Mr. Hayes resigns, then the Board would not have a quorum and would be unable to act. Moreover, the recess appointment of Craig Becker, one of the other Board members, will expire at the end of this year, meaning a resignation by Mr. Hayes would render the board with just one member and thereby unable to act starting in 2012.

On Nov. 18, the House passed a rule governing the upcoming vote on H.R. 3094, the Workforce Democracy and Fairness Act (H.R. 3094). The bill is designed to to prevent the NLRB from implementing major proposed changes that were included in their recent notice of proposed rulemaking. NSBA supports the legislation. Because the rule passed by a margin of 239 – 167, it is highly like the bill will pass when it is brought up for a vote. If the NLRB approves the new elections rule, it is widely expected that this legislation will be brought up for a final vote soon afterwards.

The Workforce Democracy and Fairness Act would:

  • Provide employers at least 14 days to prepare their case at an NLRB election hearing;
  • Provide that no NLRB election will be held in less than 35 days after filing of the petition;
  • Reinstate the traditional standard for determining which employees will be eligible to vote in the union election; and
  • Provide that eligible voters must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name.