Likely in response to the National Labor Relations Board’s controversial proposed rule that would provide for expedited representation election procedures, Sen. Jim DeMint (R-SC) introduced legislation this week that would establish longer timeframes and due process requirements for the election process. Specifically, the Fair Representation in Elections Act of 2011 (S. 1425) would add the following provision to Section 9(b) of the National Labor Relations Act:

No election shall be conducted less than 40 calendar days following the filing of an election petition. The employer shall provide the Board a list of employee names and home addresses of all eligible voters within 7 days following the Board’s determination of the appropriate unit or following any agreement between the employer and the labor organization regarding the eligible voters.

In addition, the measure would:

• Require that the appropriate bargaining unit be determined prior to an election;
• Require the Board to provide at least 14 days’ notice of a pre-election hearing;
• Stipulate that an election could not take place until a hearing is conducted on “any and all material, factual issues regarding jurisdiction, statutory coverage, appropriate unit, unit inclusion or exclusion, or eligibility of individuals;”
• Require a Regional Director or the Board to resolve all issues, subject to appeal and review, prior to an election; and
• Require the Board to rule on each pre-election issue and all issues related to the conduct or results of the election itself before the results can be certified.

The Board’s proposed rule would, among other significant changes, substantially shorten the time between the filing of an election petition and the election itself, limit issues that can be resolved during a pre-election hearing, and give employers as few as five business days to prepare a comprehensive position statement to present to the NLRB. On July 18 and 19, 2011, the Board conducted two days of public meetings to discuss the proposed changes. Earlier this month, the House Committee on Education and the Workforce held its own hearing to address problems various groups have identified with the Board’s proposal.

This bill, which was co-sponsored by six other senators, faces an uncertain future in the Senate given its current composition. As such, it may be more of a symbolic gesture in opposition to the proposed NLRB rule.

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