The period for filing comments has now expired both for the NLRB’s proposed election regulations (killing the message by drastically shortening the time frame within which an employer may communicate with its employees between a union election petition and the secret ballot election), and the Department of Labor’s amendments to the persuader regulations (killing the messenger by imposing draconian reporting rules intefering with the attorney client privilege and the ability to obtain legal advice on a range of union related issues). It is now anticipated that both sets of regulations will be promulgated in the next few months.
The legal ability of the NLRB to issue the final regulations, however, is open to question. Currently, the Board has three members: Chairman Mark Pearce, Member Craig Becker and Member Brian Hayes. The NLRB has long maintained a custom and practice of not changing existing law or overruling case precedent without three members voting to do so. Because the proposed regulations would dramatically overhaul existing agency election practices and would overrule a number of existing case law precedents related to the conduct of elections, it appears that they would require three votes under the Board's long maintained custom and practice. However, given Board Member Brian Hayes’ dissent when the proposed election rules were first announced, it is likely that the NLRB now has only two members – Chairman Mark Pearce and Member Craig Becker – who will vote to issue the regulations. Chairman Wilma Liebman, who would likely have been the third vote to do so, left the Board at the expiration of her term on August 27.
Further complicating the picture is that Member Becker’s term will end when this session of Congress adjourns at the end of 2011 or in early 2012, bringing the membership of the Board down to only two members. Because the Board may not function with only two members, as the Supreme Court decided in New Process Steel, L.P. v. NLRB, 560 U.S. __, 130 S. Ct. 2635 (2010), this would leave the Board unable to act on any cases or the regulations. Faced with this prospect, the question is whether, while the Board still has three members, Chairman Pearce and Member Becker would – in violation of the NLRB’s long held practice – issue the final election regulations before the Board drops to two members, despite having only two votes to do so. If so, it could become an issue in any post-regulation review proceedings.