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NLRB Rulemaking at the Speed of Light



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The proposed “quickie election” rules announced by the NLRB yesterday are themselves being promulgated in “quickie” fashion. Consider:

The NLRB rarely engages in rulemaking. In fact, the last time the NLRB issued broad-based substantive rules was more than 20 years ago, when it set standards for appropriate bargaining units in the health-care industry. Contrast the NLRB’s health-care rulemaking chronology with that in the present “quickie election” rulemaking:

The notice of health-care rulemaking was issued in the summer of 1987. The NLRB held four hearings — one lasting more than a week — regarding the rules’ implications. Nearly 150 witnesses testified during the hearings and there was an extended period for public comment. The board digested the information provided and issued revised rules a year later. Those rules were also subject to a public-comment period. After considering all of the witness testimony, thousands of pages of public comment, and deliberating upon the effect of the proposed rules on the health-care industry and its employees, the NLRB issued final rules nearly two years after the initial notice.

The “quickie election” rules apply to all covered industries, not just health care. The rules promise to radically change the union election process and, in the words of dissenting NLRB member Brian Hayes, “effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” Yet the NLRB will have only one hearing (lasting, at most, two days) and the entire public-comment process is scheduled to close by the end of summer.

The NLRB is an independent agency. But as board member Hayes notes, the “quickie election” rulemaking timeframe is inconsistent with President Obama’s own Executive Order 13563 that states “before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those likely to be affected” (emphasis added).

The “quickie election” rules will have a profound impact on the labor and industry landscape. The period for comment and consideration should reflect that fact.

— Peter Kirsanow is a former member of the National Labor Relations Board.



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