Congressional Leaders Seek More Time for Comments on New Election Rule

Monday, April 14th, 2014 @ 10:42AM

Representatives John Kline (R-Minn.) and Phil Roe (R-Tenn.) have written to National Labor Relations Board Chairman Mark Pearce requesting a 30-day extension to the comment period to the NLRB’s re-issued proposed representation petition rule changes.  The comment and reply comment period ends on April 14, 2014.  While expressing general opposition to significant changes in pre-election procedure as unnecessary, the Republican Representatives focused on the impact the new rules would have on employers in light of the Board’s 2011 Specialty Healthcare decision (357 NLRB No. 83).

As reported in this blog, on February 5, 2014, the NLRB, now duly and fully staffed, essentially re-issued its failed 2011 proposed representation petition rule changes.  Widely called the “quickie” or “ambush” election rule, the original rule was withdrawn as a result of successful legal challenges arising from the Board’s lack of a quorum (less than three members) when the original final rule was promulgated in December, 2011.  The current proposal raises the same concerns as the original – concerns which have been exacerbated by the ensuing years of Board activism.

A public hearing about the new proposed rule has been announced for April 10th and 11th.  Many observers expect the Board to issue its final rule some time in June.

Specialty Healthcare, often called the “micro-unit” case, heightened the legal standard for employer challenges to a union’s petitioned-for unit.  In short, it enables a union to seek certification for small, easier-to-organize, units of employees while imposing greater burdens on contesting employers to prove those units are not appropriate.  Not only is establishing the employer’s case more difficult under Specialty Healthcare, say Representatives Kline and Roe, but the accelerated rules would worsen the problem by requiring a company to locate and retain counsel, analyze the petition, investigate the pertinent facts, determine and formally state its legal position on relevant issues, and prepare for a hearing in even less time than it has now.

Reps. Roe and Kline apparently are not satisfied with a mere lengthening of the comment period.  They also are sponsoring a House bill to prevent implementation of all elements of the Board’s proposed rule.  Passage of any such bill is unlikely in the Senate and, even then, would face a probable veto by the White House.

At this writing, it is not known whether the NLRB will grant any more time for comments, or if it does, whether the additional time will bring facts and arguments to the Board’s attention adequate to affect the content of the final rule. The Board has announced it will consider the voluminous comments received when the 2011 rule was first proposed as part of the record for the present rule.

Read more at National Law Review…

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