NLRB Proposed Rulemaking“Streamlining” or “Quickie Elections”?
“Parts of what my colleagues propose seem reasonable enough. On the other hand, the whole of proposed reform is much, much more than the sum of its parts and out of all proportion to specific problems with the Board’s current representation casehandling procedures.”
Dissenting View of NLRB Member Brian E. Hayes
Petition Filed with NLRB Regional Office
Formal ProceduresConsent Procedures
Formal Hearing (RD or Board)Agreement for Consent Stipulation
Regional Director Decision
Board Decision (review or direct)
Election Conducted By Regional Director
Results Conclusive Results Inconclusive
Consent Election Stipulated Election Directed Election
RD Decides Board Decides RD or Board Decides, Board Reviews
Excelsior List - Campaign
Election Certified or Re-RunElection Certified
Petition Filed with NLRB Regional Office
Formal ProceduresConsent Procedures
Preliminary Hearing (RD only, <20% of unit)
Agreement for Consent Stipulation
Election Conducted By Regional Director
Results Conclusive Results Inconclusive
Consent Election Stipulated Election Directed Election
RD Decides RD Decides, Board Reviews
RD Decides, Board Reviews
Excelsior List - Campaign
Election Certified or Re-RunElection Certified
Proposed Rulemaking
June 22, 2011 Notice of Proposed RulemakingComments Due August 22, 2011
Public Hearing on July 18-19. 2011
Proposed Rulemaking•Not a final rule•60 days to comment•In effect after comment period•Comment by web (regulations.gov), hand-delivery or by mail•Reference Docket ID NLRB-2011-0002 RIN 3142-AA08
Consolidate all review issues into one, post-election
request for review
Hearing suspended to post-election if issues effect less
than 20% of unit
Key Changes
Electronic Filing
Statement of Position Form (all future litigation limited to statement of position)
Pre-Election = 7 DaysPost-Election = 14 Days
Eliminate 25-30 day waiting period to allow review of
Regional Director decisions
Board can deny review of post-election rulings
Provide voter phone numbers, email, shift &
departments within 2 days of direction of election (and
immediately to Board)
Review all individual voter eligibility issues post-
election
Other Changes
Pre-Election Notice required (electronic posting required
where possible)
Final Notice to employees electronically transmitted
Request for comment on blocking charges (offer of
proof, pre-election investigation, impound)
Election can be held within 10 days of transmission of eligibility list (or earlier if
union agrees)
Use of electronic signatures to support a showing of
interest
Provide phone numbers, email addresses
Provided electronically, within 2-days of direction
of election
Sanctions for misuse?
2 days enough time?
“Excelsior” list changes
Statement of Position due in 5 business days
Defer unit issues to post-election = huge
uncertainty
Challenged ballot system isn’t “secret”
Leads to extensive post-election litigation, fails to solve supposed problems
Unit Determination Changes
What’s the problem? Elections happen within targets, unions win big
Why no stakeholder meetings to determine
need for changes?
E-signatures = E-voting?
Why not apply pre-hearing statement of position in ULP
cases?
Things that make you go “hmmm.”
Encourages “knee-jerk” bad behavior
Disenfranchises voters on both sides
Shifts employer focus to proactive ER
Furthers perception of NLRB as political tool of unions
Law of Unintended Consequences
Action Item 1: Comment•Go to regulations.gov and comment (link on our site)•Key topics for comment:• No need for the rule… Board meets
current targets, unions win, withdrawals are consistent and explainable• Disenfranchises voters by increasing use
of challenged ballot process• Encourages post-election litigation and
knee-jerk employer behavior• Infringes on privacy of employees • Limits legitimate and protected employer
speech
Action Item 2: Congress•Newly elected Congress = Republican majority•House has appropriations power•Can de-fund regulatory activities (i.e. ergonomics)•NLRB already under pressure due to Boeing case•Key people to contact:• Your congressperson• Members of the House Appropriations
and Education and the Workforce Subcommittees (Kline is Chair)• Also Boehner, Issa, King (House) and
DeMint (Senate)
Action Item 3: Proactive ER•Just the beginning (short elections, micro-units, temps, supervisors, witnesses...)•Key leverage point = direct relationship•“Left of boom” ER practices
BOOM Right of BOOMLeft of BOOM
Situation Assessment
Counter-Campaign
Strategy
Alert Legal, Consulting, Jump Team
Vulnerability Assessment
Positive ER, Engagement
Hiring/Onboarding
Tripwire Team
Resources
http://lrionline.com/olms-advice-rule
http://lrionline.com/nlrb-streamlined-elections
“Sadly, my colleagues reduce that cornerstone [of transparency, participation and collaboration] to rubble by proceeding with a rulemaking process that is opaque, exclusionary, and adversarial. The sense of fait accompli is inescapable.”
Dissenting View of NLRB Member Brian E. Hayes
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