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