Wyatt Employment Law Report

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NLRB Members File Dissenting and Concurring Statements Regarding New Election Rules

By Edwin S. Hopson

On June 22, 2011, the National Labor Relations Board issued a notice of proposed rulemaking proposing various amendments of its rules governing the filing and processing of representation election petitions. On December 22, 2011, the NLRB issued a final rule amending its regulations which takes effect today. The final rule provided that any dissenting or concurring statements would be published separately in the Federal Register prior to the rule’s effective date.

Member Hayes’ dissent was just published in the Federal Register, along with a separate concurrence by Chairman Pearce responding to Hayes’ dissent.

In his dissent, Hayes points out that the new rule (1) eliminates the right to seek pre-election review of a regional director’s decision and direction of election; (2) alters the role of the hearing officer in deciding what evidence may be introduced in a pre-election hearing; (3) generally prohibits the filing of briefs after a pre-election hearing; (4) eliminates the automatic right to seek review at the Board in post-election disputes, a right previously included in stipulated election agreements; and (5) most importantly, eliminates the pre-election right to litigate all issues not deemed relevant to the question concerning representation, such as voter eligibility or unit placement of individuals who would constitute 20% or more of a bargaining unit.

Member Hayes points out that the new rule is the subject of pending litigation in the U.S. District Court for the District of Columbia brought by the U.S. Chamber of Commerce.

The full text of the concurrence and dissent can be found at:


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Senate to Debate Resolution That Would Block NLRB’s New Election Rules Meant to Speed Up the Union Election Process

By Edwin S. Hopson

On April 20, 2012, Republican U.S. Senator  Mike Enzi of Wyoming, the ranking member on the Senate Health, Education, Labor and Pensions Committee, announced that it was expected that the full Senate on April 23 and 24 will debate S.J. Res 36, which seeks to invalidate the NLRB’s regulation that would speed up the union representation election process.  The NLRB’s proposed rule is scheduled to go into effect April 30, 2012. 

Under the Congressional Review Act, if the Senate and House pass a resolution of disapproval of a federal agency regulation, that action nullifies the regulation.  As to the Senate, the law provides that such resolutions are not subject to filibuster and need only a simple majority to pass.  According to a press release issued by Senator Enzi, 44 Republican members of the Senate are already supporting the resolution.  It would appear, that if the resolution passes the Senate, that the Republican-dominated House of Representatives would also pass the resolution.

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NLRB Announces Proposed Changes To Its Representation Election Procedures Intended to Speed Up the Process

By Edwin S. Hopson

On June 21, 2011, the National Labor Relations Board, with Member Hayes dissenting, proposed changes in its representation election procedures.  The stated purpose is “to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing.”

The Board majority points out that it has periodically reviewed and frequently revised its procedures in representation cases over the years since the National Labor Relations Act was enacted into law in 1935. For many decades, the NLRB’s General Counsel has had formal time targets for many facets of the representation election process.  These proposed regulations would supplant the previous guidelines. Continue reading