On June 22, 2011, the National Labor Relations Board issued a notice of proposed rulemaking proposing various amendments of its rules governing the filing and processing of representation election petitions. On December 22, 2011, the NLRB issued a final rule amending its regulations which takes effect today. The final rule provided that any dissenting or concurring statements would be published separately in the Federal Register prior to the rule’s effective date.

Member Hayes’ dissent was just published in the Federal Register, along with a separate concurrence by Chairman Pearce responding to Hayes’ dissent.

In his dissent, Hayes points out that the new rule (1) eliminates the right to seek pre-election review of a regional director’s decision and direction of election; (2) alters the role of the hearing officer in deciding what evidence may be introduced in a pre-election hearing; (3) generally prohibits the filing of briefs after a pre-election hearing; (4) eliminates the automatic right to seek review at the Board in post-election disputes, a right previously included in stipulated election agreements; and (5) most importantly, eliminates the pre-election right to litigate all issues not deemed relevant to the question concerning representation, such as voter eligibility or unit placement of individuals who would constitute 20% or more of a bargaining unit.

Member Hayes points out that the new rule is the subject of pending litigation in the U.S. District Court for the District of Columbia brought by the U.S. Chamber of Commerce.

The full text of the concurrence and dissent can be found at:

https://www.federalregister.gov/articles/2012/04/30/2012-10263/representation-case-procedures#h-24