Explanation of resolution

Q: What do the amendments in the Chairman’s resolution provide for? 

A: The Chairman’s resolution contains six procedural amendments, all aimed at reducing unnecessary litigation in election cases before the Board: 

• The National Labor Relations Act provides for a pre-election hearing to determine whether there exists a “question of representation” to be resolved by an election. Currently, parties can raise issues at the hearing that are not relevant to that question, which can result in unnecessary, expensive, and time-consuming litigation for the Board and all parties. The first proposed amendment gives the hearing officer authority to limit the hearing to matters relevant to the question of whether an election should be held.
   
• Most cases involve only routine issues based on well-known principles of Board law. In such cases, regional directors can reach a fair and sound decision based on the record from pre-election hearing, including closing arguments. Parties may currently file briefs after the hearing, but the briefing adds nothing to the regions’ decision-making process in such routine cases and substantially increases the parties’ litigation costs. The second proposed amendment authorizes the hearing officer to decide whether to permit briefing depending on whether the case presents issues that would benefit from it.
   
• The Board’s current rules require parties to file two separate appeals to seek Board review of pre-election issues and issues concerning the conduct of the election, respectively. Appeals concerning pre-election issues must be filed before the election, and are often subsequently mooted by the results of the election. The third amendment reduces unnecessary litigation by consolidating the two appeals into a single post-election procedure and by avoiding altogether appeals of issues that become moot as a result of the election.
   
• The fourth amendment follows directly from the third, by ending the practice of delaying the scheduling of elections to permit time for a pre-election appeal. (In any event, even under the current rules, the delay does not serve its stated purpose because the Board typically permits the election to be conducted and directs that the ballots be impounded while it considers the appeal.)
   
• In keeping with the effort to avoid multiple appeals in a single case, the fifth amendment would narrow the circumstances in which a request for special permission to appeal to the Board would be granted. Such permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review. (Board review would remain available following the election on all issues for which permission to appeal was denied or not sought.)
   
• The sixth amendment would simplify appeal procedures and avoid litigation of appeals that do not present a serious issue for review. It would do this by giving the Board discretion to hear and decide any appeals to the election process, whether they concern pre-election or post-election issues. 

Q: Do the amendments provide for anything else?

A: Yes. They would eliminate one entire portion of the regulations that is entirely duplicative and therefore a potential source of confusion. They would replace those sections with an updated and accessible description of the Board’s processes that would be published with the final rule. 

Q: What parts of the original proposed rule are not included in the Chairman’s proposal?

A: The original proposal represents a comprehensive initiative aimed at modernizing and streamlining the Board’s procedures in representation cases from beginning to end. It includes dozens of proposed amendments of the Board’s rules affecting many aspects of representation proceedings. The Chairman’s resolution includes only six procedural changes, leaving the vast majority of the proposed amendments for continued consideration by the Board. Among the many proposed amendments not included in the Chairman’s proposal are the electronic filing of petitions, the requirement that hearings be set for 7 days after service of the notice of hearing, the requirement of a statement of position filing, inclusion of email addresses and phone numbers in the voter list, and the change of the period for filing the voter list from 7 to 2 work days. 

Q: Does the Chairman’s proposal mean that the remainder of the proposed rule is being rejected?

A: No. The Chairman continues to believe that modernization and streamlining of the Board’s processes along the lines of the proposed rule would greatly increase the efficiency of the agency in carrying out its statutory mission. However, because of the possibility that the Board will lose a quorum at the end of the current congressional session, he is proposing a scaled-back final rule limited to several amendments specifically aimed at reducing unnecessary litigation. The limited nature of the resolution will make it possible for all members of the Board to consider it thoroughly in the time remaining for prompt action on the rule. The remainder of the proposed rule will remain under consideration by the Board for possible future action.

Q: Are there further steps that must be taken before a final rule can issue?

A: The text of the final rule must be finalized, circulated among the members of the Board, and approved by a majority of the Board. No final rule can issue without such approval of the rule itself.