Despite widespread expectations that the National Labor Relations Board would issue its final revised “quickie” election rules prior to the expiration of NLRB Member Nancy Schiffer’s term on December 16, 2014 (to avoid being frustrated by a 2-2 Republican-Democrat split after her departure), recent events suggest the Board might not be so eager to issue the final rule. (See our previous post, What the November Election May Mean to the “Quickie” Election Rule, for more information.)
First, the Obama Administration withdrew its controversial nomination of Sharon Block to replace Member Schiffer, substituting Lauren McFerran (a Democrat), currently chief labor counsel for the Senate Health, Education, Labor and Pensions Committee. The Senate promptly held a hearing on Ms. McFerran’s nomination, which by all accounts was cordial. Committee approval (by the very Committee that presently employs Ms. McFerran) just occurred, so it is likely that full Senate confirmation will come before the current Congressional term ends (on or about December 9th). Thus, concerns about a looming Board impasse have been alleviated.
Second, the latest Regulatory Information Service Center (RISC) semi-annual Unified Agenda of federal agency actions states the probable issuance of the long-awaited NLRB final election rule is “To Be Determined.”
The RISC Unified Agenda manual directs agencies to divulge scheduled or “projected” dates of regulatory actions by at least the month and year. Where the agency has indicated “no estimated future date” for a particular action, the Agenda will read “To Be Determined.”
How is the public to interpret “To Be Determined”? Is issuance imminent or to be delayed? Is the final rule fully drafted (as many have said) or is it still being revised? Will it be issued at all?
Essentially, we have another round of Washington tea-leaf reading.
The practical imperative (avoidance of an ideological standoff on the Board) for immediate issuance of the final rule has receded. However, many believe the rule will be published in the next few weeks. One could argue that the Board’s ambiguous statement as to timing suggests it may be hedging its bets politically, concerned about Congressional reprisals. It is hard to tell. High-ranking Republicans have hinted that the incoming Congress may exercise its power of the purse to prevent NLRB application of the new rule. It may be that the longer the Board goes without issuing the new rule, the less likely it will issue at all.
Credible arguments exist to support all eventualities.