The National Labor Relations Board (NLRB) voted today to proceed with a controversial election rule despite strong dissent from one member of the board. In a 2-1 vote, Chairman Mark Pearce and Board Member Craig Becker voted to advance the proposal while member Mark Hayes voted no. 

Rumors swirled earlier this week that Hayes might resign or refuse to participate in the vote, leaving the NLRB without the quorum it needs to make major rule changes. However, Hayes said that he did not intend to resign even though he strongly opposes the rule.

Yesterday, Pearce made changes to the proposed rule. Only the revised proposal was approved today, but this revised proposal retains significant portions of the original proposal — portions that remain troubling to businesses. The NLRB vote advanced changes that would eliminate most pre-election challenges and move them to after the workers’ vote and would limit litigation surrounding union elections. Pre-election appeals would no longer be allowed which would speed up the election process.

The NLRB will now draft a final rule which will have to be voted on again. Board Member Becker’s appointment expires at the end of the year, which will bring the NLRB down to two members and without a necessary quorum. The NLRB will have to try and get this rule through to a vote prior that time.

Several provisions of the original proposal were not up for vote today, including provisions that would have: (1) required employers to provide the union with email addresses of employees, (2) required parties to identify issues and describe evidence soon after an election petition is filed, no later than the start of the hearing and prior to any other evidence being accepted; and (3) required that hearings be set for seven days after service of the notice of hearing. These items are still up for consideration for later action.

In dissent, Hayes argued that the NLRB should not proceed with the vote given the significance of the proposed changes.

“I deeply believe that whatever one’s view of the need for election rule revisions may be, a final rule should not be issued in the absence of three affirmative votes to do so,” Hayes said.

By: HRC/Cal Chamber