Wyatt Employment Law Report

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NLRB Sets Dates For Hearing Comments on Proposed Changes to Union Election Rules

By Edwin S. Hopson

On February 26, 2014, the National Labor Relations Board announced that it will conduct a public meeting at its Washington, DC headquarters on April 10 and 11, 2014, in order for persons and organizations to express their views about recently proposed changes to the NLRB’s rules governing union representation election procedures. Additional days may be scheduled for April 8 and/or April 9, 2014, should the number of persons who wish to speak warrant it.

The proposed changes would speed up the election process, which is seen as an advantage for unions seeking to organize employers’ employees.

The changes the Board is proposing would:

■ allow for electronic filing and transmission of election petitions and other documents;

■ ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;

■ streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;

■ include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and

■ consolidate all election-related appeals to the Board into a single post-election appeals process.

These changes were previously implemented in late 2011, but the rule changes were invalidated by a Federal District Judge on the grounds they had not  been adopted by a validly constituted quorum of Board Members.  The NLRB’s appeal of that ruling was dismissed, pursuant to a joint stipulation, on December 9, 2013.

Persons wishing to speak are required to submit a Request to Speak, which must be received by no later than March 10, 2014, and must conform to the requirements set forth in the Notice of Meeting filed in the Federal Register. In addition, due to seating considerations, persons attending must submit a Request to Attend, that has to be received by the NLRB no later than March 31, 2014.

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NLRB Chairman Releases Draft Resolution on Election Changes to be Voted on on November 30

By Edwin S. Hopson

On November 29, 2011, NLRB Chairman Mark Pearce made public a draft resolution to be voted upon by the Board at its November 30, 2011, public meeting. Pearce also made available an explanation of the resolution. See http://www.nlrb.gov/news/board-chairman-releases-details-election-proposal-wednesday-vote.

According to Pearce’s explanation of resolution, the draft resolution contains six procedural amendments which are aimed at reducing litigation before the Board in union representation election cases. They are:

●Provides the hearing officer at the pre-election hearing with the authority to limit the hearing to the fundamental question of whether there is a question concerning representation, thereby eliminating other issues such as whether a particular employee is a supervisor who should be excluded from the unit.

●Requires that permission by the hearing officer must be obtained in order to file post-hearing briefs with the Regional Director.

●Eliminates the right of either party to petition the Board to review any pre-election ruling by the Regional Director.

●Removes language regarding allowing 25 days from the Regional Director’s decision and direction of election to the scheduling of the election (since the right to petition for review has been eliminated).

●Restricts the circumstances under which the parties may seek permission to appeal to the Board prior to the election—that is “[s]uch permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review.”

●Makes discretionary the Board’s review of a Regional Director’s or Administrative Law Judge’s disposition of post-election disputes after both stipulated and directed elections.

Additionally, a portion of existing regulations would be eliminated and replaced with new sections consistent with the proposed changes. The remainder of the proposed changes to election rules remain under consideration.

The Chairman also stated: “The text of the final rule must be finalized, circulated among the members of the Board, and approved by a majority of the Board. No final rule can issue without such approval of the rule itself.”

There is no indication as to what the timing of that would be.