One of the most important duties of the National Labor Relations Board is conducting secret-ballot elections to determine whether employees want to be represented by a labor union. Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years. Under the law, as the Supreme Court has explained, the Board is responsible for the rules that govern representation cases.
Over the decades, the Board has revised its rules periodically, looking for ways to achieve a broadly-shared goal: making the representation process work as well as possible. One important result has been to reduce the typical time between the filing of an election petition (which triggers the Board’s procedures) and the actual election. But the current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices. It is worth asking, again, whether the Board can now do a better job, and can better serve the employees, employers, and unions that participate in the election process.
Today, the Board is proposing several revisions to its representation-case rules, through an open notice-and-comment process that will allow full public participation. The Board’s current rules have been developed over many years, and the public notice-and-comment process – which did not exist when the Board’s first rules were adopted – has rarely been used. The notice of proposed rulemaking lays out the proposed changes in great detail, fully explains the reasoning behind them, and invites comments. An open public hearing will also be held. Before adopting any final rules, the Board will carefully consider what it learns from persons with a stake in the representation process. The Board members approach this rulemaking with open minds.
Today, of course, the Board is routinely criticized for doing what the statute requires it to do. It is fair to predict, then, that the new proposals will be controversial. That controversy is unfortunate, but it is not a good reason for the Board to abandon its responsibilities.
A few points are especially important to keep in mind:
First, whatever the Board does in rulemaking will be, and must be, consistent with what the National Labor Relations Act provides.
Second, the Board has complied, and will comply, with the legal requirements that govern the rulemaking process itself.
Third, the proposed rule changes involve only the mechanics of the representation-case procedures created by the Board itself. They do not involve the other, lawful method of achieving union representation, voluntary recognition through card-check or other means. Nor do the proposed changes regulate how election campaigns are run by unions or employers, where or how elections are conducted, what bargaining units are appropriate, or any of the other substantive election issues that the Board regulates.
Finally, the proposed changes do not establish inflexible time deadlines or mandate that elections be conducted a set number of days after the filing of a petition.
I do not expect that streamlining and modernizing the Board’s representation procedures will be an easy process. But I do expect that, in the end, it will result in rules that are simpler, that are clearer, and that come closer to achieving the aim of the National Labor Relations Act: making sure that employees are free to choose whether or not they want to be represented at work, in a quick, fair, and accurate way.