The Process of NLRB Rule Making – The Laws that Control the Process of Amending the NLRB’s Election Rules and Regulations

Congress gave the NLRB the power to make, amend, and rescind rules and regulations in § 6 of the NLRA: “The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act.” In other words, Congress issued two commands in § 6. First, any rulemaking by the NLRB must comply with the Administrative Procedures Act (APA) (5 U.S.C. § 553), and, second, the rules must “carry out the NLRA’s provisions”. 

This APA process applies to federal agencies in general when they create or amend their rules and regulations, with some exceptions.  In its notice about the proposed changes, the Board says that it believes that this process is exempt from the requirement to engage in notice and comment rulemaking, “but the Board has decided nevertheless to issue this Notice of Proposed Rulemaking and seek public comments.”

The NLRB is following a process called “notice and comment” rulemaking, a process that invites the public to participate in this important decision in two ways – by making oral comments at a hearing on July 18 and continuing on July 19 if necessary to accommodate the number of speakers or by submitting written comments about the proposed rule on or before August 22, 2011.

The user-friendly explanatory materials provided by the Board and published in the Federal Register provide extensive background information on the history of election procedures and other relevant issues written in plain English. The document’s Table of Contents is linked to the parts of the document, and each part has a “back to the top” link.  The document also includes the dissenting views of Member Brian E. Hayes and the majority response to his Dissent. In addition to the text of the proposed changes, which begin at this link, the document provides a plain language overview of the provisions, which begins here.

Finally, for those who want to compare the current text with the proposed text, the Board materials include text that shows the changes.  Many involve minor editing and corrections that will not be controversial.

Others will merit study, consideration, and comment.

A discussion of drafting comments and the substance of the changes will be the subject of the next posts. Here is the link for submittin a formal comment to the NLRB.