Controversial Revised Union Election Rules Clear First Vote at NLRB

By Matt Cover | November 30, 2011 | 7:25 PM EST

National Labor Relations Board.

( – The National Labor Relations Board (NLRB) approved a revised package of controversial changes to the rules governing union elections on Wednesday, handing organized labor a major victory. The new package of rules will be circulated among board members and will have to undergo a second vote in order to be made final.

In a 2-1 party-line vote, the NLRB approved a revised package of changes that would restrict the legal rights of employers in contesting union elections. One of those rules would shorten the overall time between when a union proposes an election and when that election actually takes place, limiting the options employers have to oppose unions' efforts.

Brian Hayes, the NLRB’s lone Republican member, did not resign, despite the fact that some press reports stated that he had threatened to do so in order to stop the vote from going forward.

Hayes said that it was not in his “nature” to obstruct the NLRB’s procedures, even if he opposed them.

“It is not in my nature to be obstructionist,” Hayes told the Board before the vote. Hayes said that he could not be “credibly critical” of the Board’s partisan maneuvering if he resigned in protest.

Had Hayes resigned, the NLRB might not have been able to pass the new elections rules because it would have been denied the three-member quorum required by law.

The Board currently has only three of five seats filled, with one Democrat sitting on the board via a recess appointment. That Democrat – former SEIU attorney Craig Becker – will be forced to leave the board when Congress adjourns later this year.

Because the NLRB only voted on a resolution – and not a final rule – it is not clear whether the changes will ultimately pass because final rules typically circulate for 90 days before coming to a final vote. Becker’s term will expire in December when Congress adjourns for the year.

NLRB member Craig Becker. (AP Photo.)

Currently, unions can petition for an election if they gain the support of 30 percent of the workers they seek to unionize. Employers can challenge this show of support, triggering an investigation by an NLRB regional director -- an un-appointed bureaucrat. Employers also can challenge the rulings of regional directors before the full NLRB prior to an election taking place.

Typically, the entire process takes about 56 days to complete, with more than 85 percent of cases being resolved within 100 days.

The proposed rule would shorten to as little as 10 to 14 days the period between a union calling an election and the election date.

The proposed rule also would defer legal challenges until after the union election has taken place, forcing employers to negotiate with the new union at the same time they are challenging the legality of the election that created it.

Other changes would directly aid union organizers in rallying support for unionization among employees.